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BHOGAPURAM INTERNATIONAL AIRPORT CORPORATION LIMITED (BIACL) Notice No. 114/BIA/RFP Notification/2016 Dated 27 September 2016

BHOGAPURAM INTERNATIONAL AIRPORT CORPORATION LIMITED (BIACL)

Notice No. 114/BIA/RFP Notification/2016 Dated 27 September 2016

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Amendment 3 to RFP Notice No. 114/BIA/RFP Notification/2016 dated 18June 2016&

Amendment 1 Notice No. 114/BIA/RFP Notification/2016 dated 13 July 2016 Amendment

2 Notice No. 114/BIA/RFP Notification/2016 dated 17 September 2016

Development, Operation and Maintenance of Greenfield Airport at Bhogapuram, Vizianagaram District, Andhra Pradesh

Response to Queries on RFP

RESPONSE TO BIDDERS’ QUERIES

MANAGING DIRECTOR

Bhogapuram International Corporation Limited (BIACL)

# 10-2-1, 1st Floor, FDC Complex, AC Guards, Hyderabad-500028

Phone no: 040-29803753/69 Fax: 040-29803769

E-mail id:[email protected]

1 Response to Bidders' Queries on RFP – Part 1

mailto:[email protected]


Sr. No.

Ref. Article

Document Particular Bidder Queries Suggested Text / Justifications

from Bidders Authority Responses

3. 39.2 CA

Hypothecation and securitization for Project Assets.

Presently the provisions regarding Assignment and Charges specifies for mortgage I pledge I hypothecation of assets other than Project Assets. However, if the Equipments comprised in the Project Assets are not allowed to be hypotheca ted I mortgaged I pledged. Financing of the same will not be possible. Hence. We suggest allowing hypothecation and securitization of Project Assets. In view of this, the provision for this purpose may be added as given below: Notwithstanding anything to the contrary contained in this Agreement, the Concessionaire may. With prior consent of the Authority. which consent shall not be unreasonably withheld, hypothecate any movable Project Equipment to its lenders by way of security for any loan extended by them for acquisition of such movable Project Equipment. Above provision has been accepted in the concession for Vizhinjam Port and Bhavanapadu Port Project.

As per RFP

12. 4.1.3 (I) CA

Minimum Equity Infusion by Lead Member

It has been proposed that the Lead Member shall have infused at least 10% (ten percent) of the Total Project Cost for Phase I in the Concessionaire, before the Concessionaire avails any debt from the Senior Lenders. However, we would like to state in this regard tha t equity investment always goes in tandem with the debt investment in any project t financing. It may also be noted that the Lenders also ensure the equity investment while disbursing the debt funding for the project t. Hence, the proposed requirement is not necessary and we request that it should be removed.

Accepted

13. Article 5.3.4 CA

Shareholding Lock in Period

It has been proposed tha t Applicant shall hold a t least 51% in concessionaire till 7m Anniversary of COD of Phase I. In case of Consortium, Lead Member as well as other member whose experience has been count, will hold a t least 26% in concessionaire till in Anniversary of COD of Phase I. We request that the period of 7 years seems to be very long. Other infrastructure projects like ports and terminals. Applicant/consortium lock in period spans up to 2-3 years. Hence we request you to reduce the shareholding lock in period to 3 years in line with other infrastructure projects like ports which are equally capital intensive.

As per RFP

14 9.1 CA Performance Security

Performance Security for Phase I of the Project is proposed at Rs. 108 Crore which turns out to be 4% of the Project Cost for Phase I. However. As per our experience for development of greenfield projects in Port Sector. The Performance Security is fixed at 3% of the Project Cost. Example are the greenfield port developments at Bhavanapadu , Vizhinjam , etc.

As per RFP


Financial Progress of the Project

It is proposed in the provision to monitor the financial progress of the Project. However, we would like to submit that the actual project cost incurred for various facilities will vary as compared to estimates of those components considered in Total Project Cost. Hence, it is not appropriate to monitor the financial progress. Further. The objective of ensuring that the facilities are developed in line with the requirements of the Concession Agreement. The same can be done through physical progress monitoring which is also proposed. Further, in case of other infrastructure projects like Port development projects also, only the physical progress is monitored to ensure the committed project development. Hence, we request to remove the monitoring of financial progress of the project.

As per RFP

26 Article 2.11.1 RFP

Since the RFP, Concession Agreement and subsequent amendments are made available free of cost, and the last date for payment of cost of RFP process is same as Bid Due Date, responses to queries should be sent by email to all the parties attending the pre-bid conference irrespective of payment of RFP process cost; in addition to the uploading on the website.

As per RFP



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27. 2.15.1(vii) RFP

The requirement for submission of duly audited balance sheet and profit and loss account for the past 10 years is too onerous, especially when the Bid has to be submitted as Original, Copy and in the form of 2 compact discs. We request that this requirement for balance sheet and P&L account should be limited to only the preceding financial year since the Financial Capacity requirement pertains to Net Worth of the preceding financial year only and as far as Technical Capacity is concerned, certificates from statutory auditors would cover the same.

As per RFP

30 3.7.2 RFP In case of Tie Bidders, the Selected Bidder should not be selected based on lottery, but a re-bidding should be conducted amongst the Tie Bidders. As per RFP

42 CA

Definition – “Non- Aeronautical Services”

We request Authority to modify the definition as mentioned below, as AERA has not recognized / specified any Non-Aeronautical Services: “Non-Aeronautical Services” means the services, other than the Aeronautical Services and recognized as such by AERA

Accepted

43. CA Definition – “Police” We request that CISF may be excluded from the definition of Police and may be defined separately. As per RFP

44 CA

Definition – “Project” and “Terminal Building”

We request that the definitions of Project and Terminal Building should be modified so as to remove the requirement of separate terminals for international and domestic passengers: “Project” means the design, construction, operation and maintenance of the Airport in accordance with the provisions of this Agreement, and includes all works, services and equipment relating to or in respect of the Scope of the Project, for a minimum annual passenger handling capacity of [ ] million, with separately identified terminals for domestic passengers and international passengers, and minimum annual cargo handling capacity of [ ] million tonnes; “Terminal Building” means the passenger terminal building with separately identified terminals for domestic passengers and international passengers on the Site and the land appurtenant thereto, including the kerbside and approach roads, as described and demarcated in the Master Plan; Authority to confirm that bidders are free to plan and design the terminal as per their Master Plan requirement.

Accepted



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50 4.1.2 CA

Please confirm that the Authority will fulfil its Conditions Precedent within 60 days from the date of notice issued by Concessionaire, considering that Concessionaire would get 120 days from the Effective Date to fulfil its Conditions Precedent and it would have provided Performance Security to Authority on 60th day of the Effective Date.

As per RFP

55. 4.2 CA

We request that damages should be calculated @ 0.1% of Performance Security instead of 0.3%. Further, we request that Authority should also be liable to pay similar Damages to Concessionaire for delay in fulfilment of Conditions Precedent. Also, the period for fulfilment of Conditions Precedent by the Concessionaire should be appropriately extended in case the delay by Authority has a direct impact on fulfilment of Conditions Precedent by Concessionaire.

As per RFP

92 Article 10.3.3 CA Concessionaire should be responsible for round-the-clock vigil only to the extent of Site handed over to it by

the Authority. Accepted

102 11.4 CA

We request the following changes in this Article: “The Authority shall assist the Concessionaire in obtaining the Applicable Permits for felling of trees to be identified by the Authority for this purpose, if and only if, such trees cause any obstruction Material Adverse effect on the development, operation or maintenance of the Airport. In the event of any delay in felling thereof for reasons beyond the control of the Concessionaire, it shall be excused for failure to perform any of its obligations hereunder if such failure is a direct consequence of delay in the felling of trees. The costs and expense in respect of felling of trees shall be borne by the Concessionaire and any revenues thereof shall be paid to the Authority also be retained by Concessionaire.

As per RFP



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103. 12.1(d) CA Since the development of all airports is exempted from formal building approval process of local authorities (e.g. - Mumbai), Authority to confirm that similar exemptions will be available to the Concessionaire too. As per RFP


Considering that the Concessionaire is liable to pay Damages as per Article 4.2 for non-fulfilment of Conditions Precedent (which includes ‘submission of Master Plan to the Authority’), further Damages as prescribed in this Article should not be charged. Therefore, we request deletion of this Article.

Accepted

108 Article 12.2.9 CA The temporary use for the area earmarked for future expansion should be allowed with intimation to

Authority, instead of obtaining its prior written consent. As per RFP

111. Article 12.4.5 CA We request that each party should bear its own costs in this respect. Once the award is announced, the losing

party should reimburse to the winning party the costs incurred by it. As per RFP

113. Article 12.5.1 CA The clause should be modified to state that the Scheduled Completion Dates for the second phase shall be

mutually agreed by the Authority and the Concessionaire. Accepted

114 Article 12.5.2 CA We request to delete the table in this clause as the Concessionaire will be submitting the Phase Milestones as

part of the Master Plan in accordance with Schedule G. As per RFP

115. Article 12.5.2 CA We suggest that Authority should not charge any Damages based on delay in achieving milestones within

each Phase. The Damages should be levied only if the Scheduled Completion Date for each Phase is not met. As per RFP

116 Article 12.5.3 CA

We request deletion of the last line of this Article starting from “Notwithstanding the provisions contained herein, the Concessionaire shall also be liable……….” The stipulation is vague and the Concessionaire is already liable to pay Damages in accordance with the other provisions of this Agreement. Further, it is not clear what amounts will be payable under Applicable Laws, and hence, this statement should be deleted.

As per RFP

117. Article 12.7.1 CA We suggest that a paragraph may be inserted to stipulate that ‘the Authority shall have the same obligations

in relation to the expansion of the Airport as undertaken by it for Phase I of the Project. Accepted

121. Article 12.9.2 CA Please confirm that the Authority will also bear the increase in Pre-development Works cost on account of

time overrun by the contractors. As per RFP

123. 13.2 CA

We suggest the following modification in this Article: “During the Construction Period, the Independent Engineer shall inspect the Airport works Construction Works, considering the monthly progress reports submitted by the Concessionaire, at least once a month and make a report of such inspection……..”

Accepted


The clause should be modified as mentioned below: “The Preservation Costs shall be specifically excluded for the purposes of the determination of the Aeronautical Charges, to be determined by AERA, only in the event the suspension has occurred as a result of any deliberate action or lack of it by the Concessionaire.”

Accepted



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Ref. Article




We request following modifications (highlighted) in this Article: “……The Independent Engineer shall observe, monitor and review the results of the Tests to determine compliance of the Airport Construction Works with Specifications and Standards and Applicable Permits and if it is reasonably anticipated or determined by the Independent Engineer during the course of any Test that the performance of the Airport or any part thereof does not meet the Specifications and Standards…………”

Accepted

127. 14.2 CA This Article should provide that the Completion Report should be submitted by the Independent Engineer within 3 days of the Completion and also the Completion Certificate should be issued by the Authority within 3 days from the date of submission of the Completion Report by the Independent Engineer.

As per RFP


The clause should be modified as mentioned below: “Notwithstanding anything to the contrary contained in this Agreement, any provision of additional works and services which are not specified in the Master Plan as set out in Schedule A and are necessary for the performance of the Aeronautical Services for providing safer and improved services to the Users and the cost of such change is more than Rs. 100 crores, shall be considered as change of scope (“Change of Scope”). Any Change of Scope shall be made in accordance with the provisions of this ARTICLE 16.”

As per RFP

130 16.3 CA We request deletion of clause 16.3 as it is against the spirit and flexibility of PPP. Further, there is no rationale for Concessionaire to pay 2.5% of the cost to Authority. As per RFP


We request deletion of the following statement from the clause: “The amount so recovered shall not be considered for pass through in the determination of the Aeronautical Charges”

As per RFP

133. 17.7 CA

We suggest that the following highlighted portion be included in this Article:- “Save and except as otherwise expressly provided in this Agreement, in the event that the Airport or any part thereof suffers any loss or damage during the Concession Period from any cause whatsoever (other than for reasons attributable to the Authority, any Designated GoI Agency or due to Force Majeure), the Concessionaire shall, at its cost and expense, rectify and remedy such loss or damage forthwith so that the Airport conforms to the provisions of this Agreement.……”

As per RFP


We request the clause should be amended as mentioned below: “The Concessionaire acknowledges and agrees that the Defence Forces shall, at all times have the right to use the Airport and all facilities thereof, as determined by GOI from time to time, without any restriction or constraint of any nature whatsoever.”

Accepted



Sr. No.

Ref. Article



136 Article 17.11.2 CA We request that the Concessionaire shall not be required to pay Revenue Share for such period and the

Concession Period should also be appropriately extended. As per RFP

138 17.13 CA Document to be Submitted

Authority is requested to provide copies of approvals granted by MoEF Accepted

139. 17.16 CA The clause is same as 17.11.4 and hence should be deleted. As per RFP


We request the clause should be amended as mentioned below: “The Concessionaire shall operate and maintain, or cause to operate and maintain, the Cargo Facilities and provide the associated services to airlines and consignors in accordance with the provisions of this Agreement, Applicable Laws and Good Industry Practice.”

Accepted


The statement is incomplete, please amend suitably: “….in the event it is observed that the level of service is inferior to IATA ‘Level of Service-C’(optimum standards) during Peak Hours in any quarter and does not within 90 (ninety) days from the occurrence of such degradation of level of service in any Accounting Year, the Concessionaire shall pay Damages…”

Accepted


Please amend the clause as mentioned below: “….The obligations of the Concessionaire in respect of Reserved Areas and its access thereto shall be restricted to maintenance of civil works, structures and equipment forming part of the Reserved Area (and provided by Concessionaire as part of civil works only), provided that it shall have unrestricted access thereto in case of Emergency, fire or other similar event….”

Accepted


We request the clause should be amended as mentioned below: “The Concessionaire shall supply electricity and water, at its own cost and expense, to the Reserved Area within the Terminal Building and will be entitled to recover cost of the same”.

As per RFP

146 Article 18.10.1 CA We request the Authority to delete the words “at its own cost and expense”, since outsourcing of check-in

services is allowed. Accepted



Sr. No.

Ref. Article



148 Article 18.12.4 CA Parking

Query Please confirm that Reserved Parking can be an area earmarked within the overall Parking facility. As per RFP

149. Article 18.12.8 CA

The concessionaire shall not stop the movement of, or charge any fee from vehicles that use the approach road to pass through any part of the terminal, but do not stop for more than 8 (eight) minutes. Authority is requested to delete this condition as it is contingent upon airport landside operation requirements.

As per RFP


We request to delete this condition as it is contingent upon airport landside operation requirements. Instead, a condition of adequate car parking in each phase as per Indian benchmark can be included. Further, it is requested to confirm that after second phase of Airport development, the obligation of expansion of parking shall cease to exist.

As per RFP

151. 18.13 CA

The clause in the current form gives an impression that Concessionaire has to develop the MRO Facilities at its own cost and it can be only outsourced for operations. To avoid this interpretation, we request that the clause should be amended as mentioned below: “As and when developed or caused to be developed by the Concessionaire, the Concessionaire shall operate and maintain or cause to be operated and maintained the MRO Facilities, and provide or cause to be provided, the associated services to airlines….”

Accepted

152 Article 19.1.2 CA This should not be Concessionaire’s obligation since it is the responsibility of GOI as per the MOU. As per RFP



Sr. No.

Ref. Article




We request the Authority to please confirm that the draft CNS/ATM agreement provided is approved by AAI, if not please provide us a finalized draft which is approved by AAI. Accordingly, Authority is requested to delete the last statement in Para 19.2.1: “If the format of the CNS/ATM Agreement is changed or modified by AAI in its sole discretion any time after the date of this Agreement but before its execution by the Concessionaire, then, the Concessionaire shall execute the CNS/ATM Agreement in such changed or modified format.”

154 Article 19.2.2 CA The word “may” to be replaced with “shall”. As per RFP

155. Article 19.3.1 CA Procuring provision of security services at the Airport should be the obligation of Authority and GOI, and

not that of the Concessionaire. As per RFP


Authority does not directly provide any Reserved Services, hence, as such there should not be any requirement of 1500 sqft space. However, if this clause is to be retained, the word “minimum” should be replaced with “not exceeding”.

As per RFP

160 20.1 CA

The requirement of AODB is too onerous and the linkages envisaged are not provided at any of the Indian airports currently. Hence, this requirement should be met within 5 years from the COD of Phase 1. Also, in view of the access control issues, Authority should demand reports from the Concessionaire instead of access to the system itself.

As per RFP

161. 20.2.3(d) CA We request the Authority to please delete Clause (d) since business plan is not defined anywhere. Accepted



Sr. No.

Ref. Article



163. 20.3(d) CA This should be deleted since real time reporting to Authority will not be feasible and practical. In any case, the clause 20.3(c) covers quarterly reporting of the same. As per RFP

164 20.4 CA As Airport is a 24x7 installation, there is no “close of each day”, hence, the clause should be amended to state that the unusual occurrences of previous day shall be reported by 3 pm on the next day by email only. Accepted


The clause should be amended as below: “The Concessionaire has the right and obligation to manage, operate and regulate the Airport on a common carrier basis providing non-discriminatory services to all persons, except for the fact that different category of Users may have different rights

As per RFP

166 21.4, Schedule W

CA

We request Authority to delete the requirement of traffic sampling by Authority. It may be noted that the traffic numbers are provided to the airport operator by the respective airlines. Hence, any such traffic sampling by Authority will not serve any meaningful purpose. Similarly, we also request deletion of Schedule W (erroneously mentioned as Schedule-O in the clause 21.4.1) which pertains to traffic sampling.

As per RFP (error in clause will be updated)

167. 21.5 CA The reference of Schedule-N is incorrect since the clause pertains to EDI whereas the Schedule N pertains to Terms of Reference of Independent Engineer. Hence, the reference may be deleted. Accepted


The clause should be amended as below: “The Concessionaire shall monitor and measure quality of service on the parameters identified under Schedule I herein. The Concessionaire shall submit a performance measurement plan providing details on the measurement mechanism and measurement frequency/ periodicity. The performance measurement plan shall be prepared by the Concessionaire in consultation with the Authority accordance with the guidance provided under the Applicable Laws, i.e., Airports Economic Regulatory Authority (Terms and Conditions for Determination of Tariff for Airport Operators) Guidelines, 2011.”

As per RFP

172 22.8 CA The time period for quarterly submission of report should be increased to 21 days after the close of quarter from 7 days, in line with the requirement in clause 22.7.2. Accepted



Sr. No.

Ref. Article



173. 22.10, Schedule L

CA It is suggested that Authority should delete Clause 22.10 and Schedule L- User Charter since the facilities need to be developed for IATA Level of Service C and additionally, the Concession Agreement also stipulates Service Quality Requirements to be met by the Concessionaire.

As per RFP

174 Article 23.3.1 CA The cost and expenses of the Independent Engineer should be shared equally between Authority and

Concessionaire. As per RFP


The clause restricts sub-licensing of City Side Development prior to second anniversary of the Appointed Date. We request that this restriction should be deleted and the Concessionaire should be allowed to commence sub- licensing for City Side Development from Appointed Date.

As per RFP


It is mentioned that Concessionaire shall not accept any other amount whether by way of security deposit, loan, etc. for Real Estate Development. Authority to confirm that security deposit for Commercial/City side development shall be permissible (which is also a market practice) since substantial investment shall be involved for development of infrastructure for City Side Development.

As per RFP


The wordings “Concessionaire agrees to procure that the consideration payable to it for any sub-license, assignment or other Encumbrance shall accrue evenly over the Concession Period” need to be deleted since they can be misinterpreted to mean that the consideration payable for City Side Development has to be same every year which is not possible.

As per RFP


Please rearrange the clause as mentioned below: “Upon Termination under Clause 25.2.1, the Authority shall be entitled to encash the Bid Security or the Performance Security, as available, and appropriate the proceeds thereof as Damages. It is expressly agreed that if the Bid Security shall have been substituted by the Performance Security, the Authority shall be entitled to encash therefrom an amount equal to the Bid Security. Provided, however, that if Financial Close has not occurred due to Force Majeure or as a result of the Authority being in default of any of its obligations under Clause 4.2, it shall, upon Termination, release the Bid Security or Performance Security, as the case may be, forthwith along with the Damages due and payable under Clause 4.2. It is expressly agreed that if the Bid Security shall have been substituted by the Performance Security, the Authority shall be entitled to encash therefrom an amount equal to the Bid Security.”

Accepted

182 Article 27.2.1 CA We request that the Revenue Share Percentage quoted by the Selected Bidder should be applicable for the

entire Concession Period and should not be subjected to any annual increase. As per RFP



Sr. No.

Ref. Article



184

28.3.4, Schedule U – MoU with GoI – Clause 2.2.4

CA

The clause should be amended as below: “Any payments made by the Concessionaire to, or on behalf of, any Government Instrumentality for providing sovereign services such as customs, immigration, plant quarantine, animal quarantine services, meteorological, health and security services within the Airport shall be considered as pass through for the purpose of the determination of the Aeronautical Charges.”

As per RFP

186 28.4 CA This para lacks clarity. Please clarify the intent and rationale behind the same or delete the same. As per RFP


The Authority is requested to modify the para as under: “The Aeronautical Charges to be levied, collected and appropriated, in accordance with the provisions of ARTICLE 28, be reviewed by AERA, once in every 5 (five) years, in accordance with the provisions of AERA Act and this Agreement, provided, however, that such review shall not rely on, examine or consider any events, occurrence, circumstances or grounds for and in respect of which revision in the Aeronautical Charges, the Concession Period or any other form of relief or remedy have been provided in this Agreement.”

As per RFP


Please delete the following proviso, which is unwarranted and in any case it is only AERA which has to determine Aeronautical charges to be levied and while determining so it will certainly see if the charges are justified and not prejudicial to the interest of Users. “Provided, however, that in the event AERA determines that any increase in the Aeronautical Charges is unjustified and prejudicial to the interests of Users, it may waive such increase fully or partly”

As per RFP

189. Article 28.6.1 CA Please include a threshold limit of at least Rs. 50 crores, being cost of any capital project, for requirement of

any User Consultation in line with the Guidelines issued by AERA. As per RFP


We request the date for submission of statement should be revised to 30th June from 31st May, in line with the requirement in clause 32.1.1 for submission of annual financial statements.

Accepted


We request the following changes in this Article: “Upon the occurrence of any Force Majeure Event prior to the Appointed Date, the period set forth in this Agreement for achieving any or all of the Conditions Precedent Clause 25.1.1for achieving Financial Close shall be extended by a period equal in length to the duration of the Force Majeure Event.”

As per RFP

198 Article 33.6.2 CA Please increase the Concession Period also, in line with the extension of the Construction Period. As per RFP



Sr. No.

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The last paragraph of the clause may be amended as below: “Force Majeure Costs may include interest payments on debt, O&M Expenses, any increase in the cost of Construction Works on account of inflation and all other costs directly attributable to the Force Majeure Event, but shall not include loss of revenues from Aeronautical Charges or debt repayment obligations, and shall also not include Concession Fee and Revenue Share, and for determining such costs, information contained in the Financial Package may be relied upon to the extent that such information is relevant.”

As per RFP

200 33.7.2(b) CA All costs, instead of half cost, should be reimbursed by the Authority. As per RFP

202 33.9.2(a), (c) CA Authority should pay 100% of unpaid claims instead of 80%. As per RFP

203. 34.1 CA

We request the addition of following highlighted language in this Article: “Subject to the provisions of Clause 34.4, in the event of the Concessionaire being in material breach or default of this Agreement at any time after the Appointed Date, it shall pay to the Authority by way of compensation, all direct costs suffered or incurred by the Authority as a consequence of such material breach or default, within 30 (thirty) days of receipt of the demand supported by necessary particulars thereof, provided that no compensation shall be payable under this Clause 34 for any material breach or default in respect of which Damages are expressly specified and payable under this Agreement or for any consequential losses incurred by the Authority.”

As per RFP

204 36.1.1(c) CA

The clause should be amended as below: “(c) the Concessionaire does not achieve the COD for the respective Phase even after the extension of time as provided in the Agreement latest outstanding Phase Milestone due in accordance with the provisions of Clause 12.5.2 and Schedule G and continues to be in default during the Cure Period of 120 (one hundred and twenty) days;”

As per RFP

206 36.1.1(t) CA

The clause should be amended as below: “(t) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a Material Adverse Effect material bearing on the Project;”

As per RFP

207. 36.1.1(x) CA

The clause should be amended as below: “(x) the Concessionaire submits to the Authority any statement, notice or other document, in written or electronic form, which has a Material Adverse Effect material effect on the Authority’s rights, obligations or interests and which is false in material particulars;”

As per RFP



Sr. No.

Ref. Article




We request deletion of the following 3rd proviso in this Article: “Provided also that, no right under this Clause 36.1.3 shall be available to the Lenders’ Representative, if the Concessionaire’s Default has resulted due to Concessionaire not achieving the Phase Milestone upto 40% of Phase I in accordance with Clause 12.5.2 due to any cause or reason attributable to it, and in any such case, the Authority shall be under no obligation to serve any notice whatsoever upon the Lenders’ Representative in any such case.”

As per RFP


We request for reducing the period from 90 days to 60 days. We request for adding the following events in the Clause: (i) The Authority has failed to provide the Site to the Concessionaire in accordance with the terms of this Agreement; (ii) The Authority has failed to fulfill any obligation, for which failure Termination has been specified in this Agreement; or (iii) The Authority commits a default in complying with any other provision of this Agreement if such default causes a Material Adverse Effect on the Concessionaire.

As per RFP


We request the Authority to include Termination Payment for debt due towards operational capital expenditure. Further, there is no provision for any Termination payments during Construction Period. Please include the same on the lines similar to Operation Period.

As per RFP

211. 36.3.1(a) CA Please increase the Debt Due from 90% to 100% As per RFP

212 36.3.1(b) CA Please increase the Additional Termination Payment from 70% to 100% As per RFP

213. 36.3.2(a) CA The clause should be amended as below:

“(a) Debt Due less Insurance Cover; and” As per RFP


The provision that no termination payment shall be due and payable in respect of expenditure comprising the first 40% of the Total Project Cost, is very stringent and will make this project unbankable. We request the Authority to provide for Termination Payments during Construction Period also, as suggested above.

As per RFP



Sr. No.

Ref. Article




Authority is requested to make the modifications in clause 36.3.5 based on either of the options: Option 1 “Upon Termination on expiry of the Concession Period by efflux of time and in the event any Project Assets, essential for the efficient, economic and safe operation of the Airport or otherwise as per the requirements of this Agreement, shall have been acquired and installed after the 25th(twenty fifth) anniversary of the Appointed Date, with prior written consent of the Authority, which consent shall not be unreasonably denied, a Termination Payment equal to 100% (hundred percent)80% (eighty percent) of the Adjusted Depreciated Value of such Project Assets shall, notwithstanding the provisions of Clause 36.4.1, be made by the Authority to the concessionaire. Provided that any such Termination Payment shall be adjusted and reduced by the amount that shall have been considered by AERA in the determination of the Aeronautical Charges.” Option 2 “Upon Termination on expiry of the Concession Period by efflux of time and in the event any Project Assets, essential for the efficient, economic and safe operation of the Airport or otherwise as per the requirements of this Agreement, shall have been acquired and installed after the 25th(twenty fifth) anniversary of the Appointed Date, with prior written consent of the Authority, which consent shall not be unreasonably denied, a Termination Payment equal to 80% (eighty percent) of the Adjusted Depreciated Value of such Project Assets shall, notwithstanding the provisions of Clause 36.4.1, be made by the Authority to the concessionaire. Provided that any such Termination Payment shall be adjusted and reduced by the amount that shall have been considered by AERA in the determination of the Aeronautical Charges.”

As per RFP


Termination Payments as provided for under Clause 36.3.5, in case of Project Assets acquired and installed after the 25th Anniversary of Appointed Date, should also be provided for in case of extension of Concession Period in accordance with the proviso to Clause 3.1.1.

As per RFP


This Article may be modified as follows: “The Concessionaire shall bear and pay all costs incidental to divestment of all of the rights, title and interest of the Concessionaire in the Project Assets in favor of the Authority upon Termination, save and except that all stamp duties payable on any deeds or Documents executed by the Concessionaire in connection with such divestment shall be borne by the Authority Concessionaire.

Accepted

219. 38.1 CA

We request addition of the highlighted language in this Article: “The Concessionaire shall be responsible for all defects and deficiencies in the Airport (other than caused on account of Force Majeure or for reasons attributable to the Authority) for a period of 120 (one hundred and twenty) days after Termination, and it has the obligation to repair or rectify, at its own cost, all defects and deficiencies (other than caused on account of Force Majeure or for reasons attributable to the Authority) observed by the Authority in the Airport during the aforesaid period….”

As per RFP

222 41.2.1 and 41.2.2

CA These Articles may be deleted as the Concessionaire is already providing indemnity to the Authority for breach of its obligations under this Agreement and therefore, there should be no additional indemnity to be provided by the Concessionaire.

As per RFP



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224 46.7 CA We request the addition of the following highlighted portion: “Except to the extent expressly provided in this Agreement and unless it leads to Material Adverse Effect on the performance of its obligations by the Concessionaire……….”

As per RFP

225. New Clause CA

We request addition of the following clause in this Article, as 46.19: Confidentiality Neither the Concessionaire or the Authority shall, unless otherwise mutually agreed, disclose to any third party (other than its directors, officers, employees, consultants, lenders, agents or the nominee under the Substitution Agreement, to the extent required or incidental to the performance of its obligations under the Project Agreements) any information which is the property of the other Party to this Agreement or which otherwise relates to its business, secrets, dealings, transactions, or affairs unless, and to the extent that, such disclosure: (a) is reasonably required for the exercise or performance by either Party of its rights or obligations under this Agreement; (b) is required pursuant to the Applicable Laws; or (c) relates to information which is already in the public domain, other than as a result of breach of this Article by the Party seeking to make such disclosure; provided that in the case of any disclosure in accordance herewith, the Party disclosing such information shall, so far as reasonably practicable, impose on the third party receiving such information, such obligations as may be appropriate to maintain its confidentiality.

As per RFP

227.

Schedule I Clause 1

CA

The clause may be amended as mentioned below, in line with the requirement of clause 22.7: “1 Service Quality Requirements The Concessionaire shall, at all times after fifth anniversary of the Phase 1 COD, procure and ensure that it achieves the Service Quality Requirements as set forth in Annex I of this Schedule I.”

As per RFP

228

Schedule I Clause 2

CA We request the reporting should be done on quarterly basis instead of monthly basis. As per RFP

230

Schedule I Annex I

CA

The opening statement of the Annex I may be amended as mentioned below, in line with the requirement of clause 22.7: “The Concessionaire shall at all times after fifth anniversary of the Phase 1 COD procure and ensure that the services provided at the Airport conform to the Key Performance Indicators (“Service Quality Requirements”), specified in this Annex I of Schedule I.”

As per RFP

234

Schedule I Annex I

CA “Availability of Flight Information” is appearing twice and may deleted from one place. Accepted as per query 860



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235.

Schedule I Annex I

CA Gate Lounges seating is specified 80% of aircraft capacity. We request Authority to revise this in line with IATA Level of Service - C. Accepted

236

Schedule I Annex I Clause 2

CA

We request the clause should be amended as mentioned below: “The subjective quality of service shall be measured on the parameter of “Overall satisfaction with the airport” on the ACI ASQ survey to be conducted every quarter. The benchmark score for the parameter “Overall satisfaction with the airport” shall be at least equivalent to such score that the Airport is identified within top 20 (twenty) percentile of all airports in its category in the world. The Concessionaire shall also provide performance on all measured parameters of the ACI ASQ survey as part of the Quarterly Monthly Statement being submitted as per the provisions of ARTICLE 22 20 of the Agreement.” The change in reference of Article is required since clause 22.7 of Article 22 clearly provides for the timelines for f years from Phase 1 COD.

Accepted

238

Schedule K Point no. 5 and 6

CA We request that reporting requirement for Transfer Passengers should be for all the transfer passengers, as the break-up of the same between domestic and international is not possible. As per RFP



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239.

Schedule K Point No. (I)

CA We request that the “Details of free services provided” should be deleted as there is no Fee collected for such services and it will be impossible to track the number of Users. Accepted

240 Schedule L CA

Without prejudice to our earlier request for deletion of this Schedule L, the following amendments need to be done: (1) 2.2.2 – The entry of visitors into Terminal Building has to be strictly in accordance with Applicable Laws. Hence, the clause may be modified suitably. (2) 2.2.6 – The requirement of paper glass should be deleted. (3) 2.5 – Requirement of enabling the arriving passengers to buy the ticket without going out of the Terminal building has to be deleted. Generally, ticket counters are located near departure area and hence, arriving passengers will have to exit arrival hall/building and then enter the departure area/building for buying ticket.

Accepted

242 Schedule N 4.2.2

CA

The opening statement of the clause should be amended as mentioned below: “Review of award of Construction Works and commercial contracts by the Concessionaire:” This change is required since clause 4.6 takes care of review by Independent Engineer of EPC Contracts and other contracts during the Development Period. Moreover, commercial contracts can be misinterpreted to mean review of contracts pertaining to duty free, F&B, etc. also by Independent Engineer, which is not the intention.

As per RFP

244

Schedule N – Clause 11

CA

We request addition of the following clause in this Article as 11.5: “Notwithstanding anything contained herein, the role, functions and scope of work of the Independent Engineer as set out herein shall be in accordance with the Concession Agreement and to the extent the roles, functions and scope of work of the Independent Engineer are inconsistent with anything contained in the Concession Agreement, the provisions of the Concession Agreement shall prevail.”

As per RFP

245.

4.1 Schedule O- Escrow Agreement

CA Controls on withdrawals from Escrow Account should be only with respect to dues of the Authority, Statutory payments and debt servicing to lenders. All the residual amounts lying to the credit of Escrow Account should be left at the sole discretion of the Concessionaire.

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246

9.1.1 Schedule O- Escrow Agreement

CA

We request the following modification in this clause: “The Concessionaire will indemnify, defend and hold the Authority, Escrow Bank and the Senior Lenders, acting through the Lenders’ Representative, harmless against any and all proceedings, actions and third party claims for any loss, damage, cost and expense arising out of any material breach by the Concessionaire of any of its obligations under this Agreement or on account of failure of the Concessionaire to comply with Applicable Laws and Applicable Permits (and not for reasons attributable to the Authority or the Lenders’ Representative), resulting into a Material Adverse Effect on the performance of obligations by the Authority or the Lenders’ Representative.”

As per RFP

247.

Schedule Q – Clause 2

CA

We request the following modification in this clause: “The Authority hereby acknowledges compliance and fulfilment by the Concessionaire of the Divestment Requirements set forth in Clause 35 Article 37 of the Agreement on the basis that upon issue of this Vesting Certificate, the Authority shall be deemed to have acquired, and all title and interest of the Concessionaire in or about the Airport shall be deemed to have vested unto the Authority, free from any encumbrances, charges and liens whatsoever, subject however to the Termination Payment made and release of Performance Security, as the case may be, by the Authority to the Concessionaire.”

As per RFP

248

Schedule R – Clause 2.1

CA

We request deletion of the following proviso in this Article: “Provided however that, any such assignment shall not be binding or enforceable by the Lenders’ Representative, if the Concessionaire’s Default has resulted due to Concessionaire not achieving the Phase Milestone upto 40% of Phase I in accordance with Clause 12.5.2 due to any cause or reason attributable to it and the same has not been cured in accordance with the terms thereof.”

As per RFP

250

5.11.1 and 5.11.2 Schedule S – Shareholders Agreement

CA

In order to ensure that the operations of the Airport are not affected, we request addition of the following highlighted language in this Article: “5.11.1 The quorum for the meetings of the Board or any adjournment thereof shall necessarily include the Director nominated by the Authority. In case the Director nominated by the Authority is not present in a meeting, such meeting will be adjourned for a future date (not exceeding for a period of 3 (three) days thereof). Provided however that if the Director nominated by the Authority is not present in such subsequent meeting, then the meeting can continue and decisions can be taken by the other directors present in such meeting. 5.11.2 Subject to the Article 5.11.1 above, all items of business transacted or decisions taken at meetings where the quorum is not so constituted shall be null and void.

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252

3.4.2 Schedule S – Shareholders Agreement

CA

Authority is requested to modify the clause as under: “The Promoters and the Concessionaire hereby agree to undertake all such actions and perform all such functions, as may be required under the Applicable Laws, as may be requested by the Authority from time to time, to give effect to its obligations under the above referred Government Resolutions, at the cost of Authority

As per RFP

256

8.2.3 of Schedule S – Shareholders Agreement

CA

We suggest the following modification in this Article: “On the occurrence of a Termination Event on the part of any of the Promoters, the Authority may, at its discretion, require such Promoters to transfer all, but not less than all, of the Equity Shares held by it to the Authority at the lower of the market value of Equity Shares or 100% (hundred percent) 25%(twenty five percent) of the book par value thereof; and the transfer of such shares shall take place at the registered office of the Concessionaire within 30 (thirty) days from the date of notice by the Authority in this behalf.”

As per RFP

257.

2.2(a) Schedule T – CNS/ATM Agreement

CA

We request the Authority that cost of developing the ATC Facility should be borne by AAI and not by the Concessionaire since AAI is not providing any services to the Airport and instead will be providing services to the airlines and will be collecting RNFC and TNLC directly from the airlines. Without prejudice to the above, if Concessionaire is still obliged to construct and fund the above facility, a separate component of tariff should be decided for the same which should not be included in the Gross Revenue for the purpose of calculation of Revenue Share.

As per RFP

263.

Schedule U - 2.5 MoU with GoI

CA

Please confirm that once Bhogapuram Airport becomes operational, the existing Visakhapatnam Airport will cease to handle civilian operations, and accordingly, all the bilateral rights currently available to Visakhapatnam Airport shall stand transferred to Bhogapuram Airport. Accordingly, the clause 2.5 may be modified suitably.

Accepted



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285. 6.5 and 6.5

TEFR

The clauses provide details of conceptual Master Plan for Real Estate development at the Airport Authority is requested to confirm that the Concessionaire shall be free to have completely new demand assessment and can delete the provision of 350 acres of green belt provided by Authority in its current Real Estate Development plan for 1525.21 acres of land earmarked for commercial development.

Accepted. Green belt etc. to be provided as per government norms and local bye-laws.

296 2.2.3 (a) RFP

In the event the Bidder is not a Consortium, it shall be eligible only if it has equivalent O&M experience of its own or enters into an agreement with having the O&M Experience…..

We request that the said insertion be made to remove any ambiguity in the said provision.

In the event the Bidder is not a Consortium, it shall be eligible only if it has equivalent O&M experience of its own or enters into an agreement with an entity having the O&M Experience…..

Accepted

297. 2.2.3 (c) RFP

In the event the Bidder does not have the relevant O&M Experience, it shall enter into an agreement with an entity having the O&M

We suggest deletion of this provision as it may create ambiguity and may adversely affect the bidding process particularly when the Bidder fails to appoint one in the stipulated time. We propose that in the event of a single bidder, the single bidder should possess the O&M Experience and in case of the Consortium, a member should possess the requisite O&M Experience.

‐NA‐ Accepted



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Experience as set out in Clause 2.2.3 (a)……..

298 2.8.3(b) RFP

The Bidder does not provide, within the time specified by the Authority, the supplemental information sought by the Authority for evaluation of the Bid.

We request that a period of two weeks be provided for submission of information by the bidder, which may be material to the bid. Further, the Authority is requested to consider either: a) Reject the Bid, considering the same as non‐Responsive, and return the Bid Security; or; b) Assess the Bid, based on the information already submitted by the Bidder.

the Bidder does not provide, within the time specified by the Authority, which shall not be less than 15 (fifteen) days, the supplemental information sought by the Authority for evaluation of the Bid

Accepted (2 weeks)

300 3.2 RFP

Technical Capacity for purposes of evaluation

Request that experience in the construction of a greenfield airport of five (5) mppa should be made a mandatory requirement under the Technical Capacity. ‐NA‐ As per RFP

301. 3.7.2 RFP

In the event that two or more Bidders quote the same amount of the Annual Premium (the “Tie Bidders”),

We request that in the event of tie, the Authority should conduct a fresh bidding by the Tie Bidders instead of conducting a draw of lot. ‐NA‐ As per RFP



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the Authority shall identify the Selected Bidder by draw of lots, which shall be conducted, with prior notice, in the presence of the Tie Bidders who choose to attend

304 1.1 RFP

“Aeronautical Charges” means the charges approved by AERA, which charges can be levied, collected and appropriated by the Concessionaire;

Suggested revision is requested for making the definition more specific.

“Aeronautical Charges” means the charges for the Aeronautical Services approved by AERA, which charges can be levied, collected and appropriated by the Concessionaire;

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309. 1.1 RFP

“Financing Agreements” means the agreements executed by the Concessionaire in respect of financial assistance to be provided by the Senior Lenders by way of loans, guarantees, subscription to non‐convertible debentures and other debt instruments including loan agreements……

Financing Agreements to include hedging agreements, and foreign currency loans (ECB).

“Financing Agreements” means the agreements executed by the Concessionaire in respect of financial assistance to be provided by the Senior Lenders by way of loans (including foreign currency loan, and any external commercial borrowing), guarantees, subscription to non‐convertible debentures and other debt instruments including loan agreements, guarantees, notes, debentures, bonds and other debt instruments, security agreements, and other documents, including deed of novation/transfer/assignment, relating to the financing (including refinancing) of the Total Project Cost for the relevant Phase of the Project including any hedging arrangements in case of off shore borrowings, and includes amendments or modifications made in accordance with Clause 5.2.3.

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310 1.1 RFP

GDCR” means the General Development Control Regulations of the Authority;

Kindly delete the said definition since it has not been used anywhere.

“GDCR” means the General Development Control Regulations of the Authority;

Accepted

311. 1.1 RFP

Government Resolutions;

Please provide the copies of the Government Resolutions referred to in the draft Concession Agreement; ‐NA‐ Accepted



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319. 1.1 RFP

“Project Agreements” ……..arising out of or incidental to the Project and have a contract worth of more than Rs.25, 00, 00,000/‐ (Rupees Twenty Five Crore) annually or cumulatively……

We suggest that the cap should be raised to Rs. 50 crores instead of Rs. 25 crores.

“Project Agreements” ……..arising out of or incidental to the Project and have a contract worth of more than Rs.25,00,00,000/‐ (Rupees Twenty Five Crore) Rs. 50,00,000 (Rupees fifty crore only) annually or cumulatively……

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322 RFP

assignees, who have agreed to guarantee or provide finance to the Concessionaire under any of the Financing Agreements for meeting all or any part of the Total Project Cost and who hold pari passu charge on the assets, rights, title and interests of the Concessionaire;

The Authority may like to advise what assets to be charged by the Concessionaire in favor of the senior lender for the purpose of treating such Senior Lender as a secured creditor in accordance with the applicable law. Please also include refinance as highlighted

their successors and assignees, who have agreed to guarantee or provide finance or refinance to the Concessionaire under any of the Financing Agreements for meeting all or any part of the Total Project Cost and who hold first pari passu charge on the assets, rights, title and interests of the Concessionaire;

As per RFP

330 New Clause RFP

There is no provision of viability gap funding by way of grant in the Concession Agreement. However the A.P. Civil Aviation Policy, 2015 does envisage provision of such viability gap funding to make the project commercially viable. In fact, for airports at Hyderabad and Bengaluru, State Governments had provided Viability Gap Funding (VGF) to make the projects viable. The Authority should make suitable provisions in the Concession Agreement and bidding parameters.

‐NA‐ As per RFP

332 3.1.1 RFP

Subject to and in accordance with the provisions

Definition of material breach needs to be based on specific events of default for this clause. Also, material breach equivalent to 10% of Performance Security is too less for a Project of this size for a period of 27 years. Please make revisions accordingly.

_‐NA‐_ As per RFP



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of this Agreement, GOI Approval, GoAP Approval, Applicable Laws and the Applicable Permits, the Authority hereby grants to the Concessionaire, the concession set forth herein including the exclusive right, license and authority to develop, operate and maintain the Airport (“Concession”) for an initial period of 30 (thirty) years commencing from the Appointed



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Date, and the Concessionaire hereby accepts the Concession and agrees to implement the Project subject to and in accordance with the terms and conditions set forth herein….



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333. 3.1.1 (Proviso)

RFP

Provided further that, in the event the Airport is not expanded by the Concessionaire in accordance with the provisions of this Agreement or the Concessionaire has been in default of the provisions of this Agreement, then, the Authority shall not be under any obligation to extend the Concession Period under this Clause 3.1.1. In any event, at all times, any decision concerning

We request that this proviso should be applicable only if the concessionaire is in ‘material’ default, to reasonably limit liability of the Concessionaire. Also, we request deletion of the last line as the process of extension would be as per the terms of this agreement as provided in this article 3.1.

…….Provided further that, in the event the Airport is not expanded by the Concessionaire in accordance with the provisions of this Agreement or the Concessionaire has been in a material default of the provisions of this Agreement, then, the Authority shall not be under any obligation to extend the Concession Period under this Clause 3.1.1. In any event, at all times, any decision concerning the extension of the Concession Period will vest with the Authority.

As per RFP



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the extension of the Concession Period will vest with the Authority.



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336 4.1.3 RFP

Except as may have been specifically otherwise provided in this Agreement, the Conditions Precedent required to be satisfied by the Concessionaire within a period of 120 (one hundred twenty) days from the date of this Agreement shall be deemed to have been fulfilled, when the Concessionaire shall, subject to the satisfaction of the Authority, have…

It is requested to amend the clause as provided here specifically as some of the deleted Conditions Precedents are also the Authority’s Conditions Precedents and the Concessionaire should not be obliged to ‘procure execution of ….documents.

Except as may have been specifically otherwise provided in this Agreement, the Conditions Precedent required to be satisfied by the Concessionaire within a period of 120 (one hundred twenty) days from the date of this Agreement shall be deemed to

As per RFP



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339.

New clause preceding 4.2

RFP There should be equal liability for both the Concessionaire and Authority for delay in fulfilling the Conditions Precedent.

Damages for delay by the Authority In the event that (a) the Authority does not procure fulfilment or waiver of any or all of the Conditions Precedent set forth in Clause 4.1.2 within the period specified in respect thereof, and (b) the delay has not occurred as a result of breach of this Agreement by the Concessionaire or due to Force Majeure, the Authority shall pay to the Concessionaire Damages in an amount calculated at the rate of 0.3% (zero point one per cent) of the Performance Security for each day’s delay until the fulfilment of such Conditions Precedent, subject to a maximum amount equal to the Bid Security.

As per RFP



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340 4.2 RFP

Damages for delay by the Concessionaire In the event that (a) the Concessionaire does not procure fulfilment or waiver of any or all of the Conditions Precedent set forth in Clause 4.1.3 within the period specified in that Clause.....

Suggested provision is added to bring Clarity.

Damages for delay by the Concessionaire In the event that (a) the Concessionaire does not procure fulfilment or waiver of any or all of the Conditions Precedent set forth in Clause 4.1.3 within the period specified in that Clause, and (b) the delay has not occurred as a result of failure to fulfil the obligations under Clause 4.1.2 or other breach of this Agreement by the Authority or due to Force Majeure and has occurred due to the reasons solely attributable to the Concessionaire, the Concessionaire shall pay to the Authority Damages in an amount calculated at the rate of 0.3% (zero point three per cent) of the Performance Security for each day’s delay until the fulfilment of such Conditions Precedent, subject to a maximum amount equal to the Bid Security…

As per RFP



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341. 4.3.1 RFP

… Provided, however, that in the event the delay in occurrence of the Appointed Date is for reasons attributable to the Concessionaire, then, notwithstanding the provisions of Clause 4.2 above, the Performance Security of the Concessionaire shall be encashed and appropriated by the Authority as Damages thereof.

In case of termination due to the delay by the Authority, it is requested that the suggested proviso be added to make the clause fair and equitable.

… Provided, however, that in the event the delay in occurrence of the Appointed Date is for reasons attributable to the Concessionaire, then, notwithstanding the provisions of Clause 4.2 above, the Performance Security of the Concessionaire shall be encashed and appropriated by the Authority as Damages thereof. Provided further that in the even the delay in occurrence of the Appointed Date is for reasons attributable to the Authority, all payments so far made to the Authority including the Performance Security shall be returned to the Concessionaire.

Accepted



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342 4.3.1 RFP

Without prejudice to the provisions of Clause 4.2, and subject to the provisions of Clause 9.1 and Clause 9.2, the Parties expressly agree that in the event the Appointed Date does not occur, for any reason

At least 480 days need to be provided as time period in this clause.

Without prejudice to the provisions of Clause 4.2, and subject to the provisions of Clause 9.1 and Clause 9.2, the Parties expressly agree that in the event the Appointed Date does not occur, for any reason

As per RFP



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345. 4.3.2(b) RFP

Preferred Concessionaire shall transfer its entire shareholding in the Concessionaire to the Authority or any of its nominees, at its own cost, within 15 (fifteen) days of the termination, and each of the Concessionaire and the Preferred Bidder shall take all such actions and proceedings, as may be required under the Applicable Laws, to complete such transfer;

Kindly substitute “Concessionaire” with “Bidder”.

Preferred Bidder concessionaire shall transfer its entire shareholding in the Concessionaire to the Authority or any of its nominees, at its own cost, within 15 (fifteen) days of the termination, and each of the Concessionaire and the Preferred Bidder shall take all such actions and proceedings, as may be required under the Applicable Laws, to complete such transfer;

Accepted



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347. 5.1.7 (k) RFP

procure the supply of electricity to the Airport from the grid, including procuring standby arrangements for supply of electricity necessary for maintenance of Aeronautical Services and Non‐Aeronautical Services in the event of outages or failure of electricity supply from the grid, and also arranging for the availability of the electricity for the Users of the Airport and various

In case of captive plant or solar power plant, the electricity would not be routed through the grid. Is this arrangement envisaged under the current conditions? The clause specifies to procure the electricity to the Airport from grid including procuring standby arrangement ‐ does this mean that the Concessionaire will have to bear this cost. If yes, what is the location and distance of source / grid? Availability of electricity to Users should be recoverable from them by the Concessionaire.

procure the supply of electricity to the Airport from the grid other than if a captive plant or solar power plant being set up by the Concessionaire, including procuring standby arrangements for supply of electricity necessary for maintenance of Aeronautical Services and Non‐Aeronautical Services in the event of outages or failure of electricity supply from the grid, and also arranging for the availability of the electricity for the Users of the Airport, on a chargeable basis, and various Aeronautical Services and Non‐Aeronautical Services in accordance with the provisions of the Electricity Act, 2003 and rules and regulations made thereunder;



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Aeronautical Services and Non‐ Aeronautical Services in accordance with the provisions of the Electricity Act, 2003 and rules and regulations made thereunder;



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349. 5.2.2 RFP

Except the Project Agreements which are annexed as Schedule to this Agreement, the Concessionaire shall …

We request that requirement of submission of all Project Agreements with Authority for review should be deleted and an obligation may be imposed on the Concessionaire which shall ensure that all the Project Agreements are in compliance with terms of this Agreement.

Except the Project Agreements which are annexed as Schedule to this Agreement, the Concessionaire shall …

As per RFP

350 5.2.4 RFP

Except as otherwise contained in this Agreement for the purposes of the construction and operation of the Airport, including Aeronautical Services and the Non‐Aeronautical Services, the Concessionaire shall not assign or in any manner create an Encumbran

This is very wide; Project Asset also includes right of way and receivable. Without a clarity on such issues, lenders will not agree to finance such project. NA As per RFP



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ce on any Project Asset without prior written approval of the Authority, which approval the Authority may, in its discretion, deny.



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351. 5.2.5 RFP

The Concessionaire shall procure that each of the Project Agreements contains provisions that entitle the Authority to step into such agreement, in its sole discretion, in substitution of the Concessionaire in the event of Termination or Suspension (the “Covenant”). It is expressly agreed that in the event the Authority does not exercise such rights of

Such a clause may not be acceptable to sub‐ contractors and they may claim damages in case of such a termination of their contracts. Further, the requirement of delivering to the Authority an acknowledgment and undertaking, in a form acceptable to the Authority, from the counter party(s) of each of the Project Agreements in respect of the Covenant is too unreasonable and should be done away with.

The Concessionaire procure that each Project Agreements contains provisions that entitle the Authority to step into such agreement, in its sole discretion, in substitution of the Concessionaire in the event of Termination or Suspension (the “Covenant”). It is expressly agreed that in the event the Authority does not exercise such rights of substitution within a period not exceeding 90 (ninety) days from the Transfer Date, the Project Agreements shall be deemed to cease to be in force and effect on the Transfer Date without any liability whatsoever on the Authority and the Covenant shall expressly provide for such eventuality. The Concessionaire expressly agrees …

As per RFP



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substitution within a period not exceeding 90 (ninety) days from the Transfer Date, the Project Agreements shall be deemed to cease to be in force and effect on the Transfer Date without any liability whatsoever on the Authority and the Covenant shall expressly provide for such eventuality. The Concessionaire expressly agrees …



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352 5.2.6 RFP

… The decision of the Authority and the Designated GOI Agency in this behalf shall be final, conclusive and binding on the Concessionaire, and the Concessionaire undertakes that it shall not give effect to any such selection or contract without having such prior approval. It is expressly agreed that approval of the Authority or the Designated GOI Agency hereunder

As per the intent of this clause, we request that only name and address of the EPC Contractors and O&M Contractors should be submitted to the Authority for approval (and not the entire contract). Further, there should be a timeline provided for the Authority’s decision.

…The decision of the Authority and the Designated GOI Agency in this behalf shall be final, conclusive and binding on the Concessionaire, and the Concessionaire undertakes that it shall not give effect to any such selection or contract without having such prior approval. To this effect, the Concessionaire shall submit the name and address of the EPC Contractors and O&M Contractors with whom execution of EPC Contracts and O&M Contracts is proposed. It is expressly agreed that approval of the Authority or the Designated GOI Agency hereunder shall be limited to national security and public interest perspective. If such approval is not provided by the Authority within the period of 15 (fifteen) days, then it shall be deemed to be accepted by the Authority. It is also agreed that the Authority shall not be liable in any manner on account of grant or otherwise, of such approval and that such approval or denial thereof shall not in any manner absolve the Concessionaire or its EPC Contractors or O&M Contractors from any liability or obligation under this Agreement.

As per RFP



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shall be limited to national security and public interest perspective. It is also agreed that the Authority shall not be liable in any manner on account of grant or otherwise, of such approval and that such approval or denial thereof shall not in any manner absolve the Concessionaire or its EPC Contractors or O&M Contractors from any liability or obligation under this Agreement.



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353. 5.3.2 RFP

Notwithstanding anything to……shall constitute a Change in Ownership requiring prior approval of the Authority from national security and public interest perspective…The Authority shall not be liable in any manner on account of grant or otherwise of such approval and that such approval, delay, denial or otherwise thereof shall not in any manner absolve, the Concessionaire from

Request to provide a timeline for granting approval under this clause. Also request to insert a provision for the sale of clarity that Change In Ownership will carve out transfer of shares to Affiliates/Associates.

Notwithstanding anything to… …shall constitute a Change in Ownership requiring prior approval of the Authority from national security and public interest perspective…? If such approval is not provided by the Authority within the period of 15 (fifteen) days, then it shall be deemed to be accepted by the Authority. The Authority shall not be liable in any manner on account of grant or otherwise of such approval and that such approval, delay, denial or otherwise thereof shall not in any manner absolve, the Concessionaire from any liability or obligation under this Agreement.

As per RFP



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any liability or obligation under this Agreement.



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354 5.6.1 RFP

The Concessionaire agrees and undertakes that it shall procure contracts, goods and services for the construction and operation of the Airport in a fair, transparent and efficient manner, and without any undue favor or discrimination in this behalf. In pursuance hereof, it shall frame a procurement policy specifying the principles and procedures that it shall follow in

The Concessionaire is anyways obligated to follow the Good Industry Practice as applicable to the Project and the first line of this article sufficiently covers the scope. Requested deletion is important as otherwise the Concessionaire will face hurdles in operations, its commercial flexibility shall be adversely affected and it may become subject to frivolous litigations.

The Concessionaire agrees and undertakes that it shall procure contracts, goods and services for the construction and operation of the Airport in a fair, transparent and efficient manner, and without any undue favor or discrimination in this behalf. In pursuance hereof, it shall frame a procurement policy specifying the principles and procedures that it shall follow in awarding contracts for supply of goods and services, and shall place the policy on its website for the information of general public and all interested parties. The policy shall also include the principles and procedures to be followed for leasing, licensing, sub‐ licensing, or grant or allocation of any space, building, rights or privileges to private entities in the Airport.

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awarding contracts for supply of goods and services, and shall place the policy on its website for the information of general public and all interested parties. The policy shall also include the principles and procedures to be followed for leasing, licensing, sub‐licensing, or grant or allocation of any space, building, rights or privileges to private entities in the Airport.



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355. 5.6.2 RFP

For procurement of goods, works or services and for award of leases, licenses, sub‐licenses or any other rights or privilege where the consideration exceeds Rs. 25, 00, 00,000/‐ (Rupees Twenty Five Crore) in any Accounting Year (collectively the “Contracts”), the Concessionaire shall invite offers through open competitive bidding by means of e‐tendering and shall

We request to increase the threshold of Rs. 25 crores to Rs. 50 crores to enable the Concessionaire to exercise its operational flexibility.

For procurement of goods, works or services and for award of leases, licenses, sub‐licenses or any other rights or privilege where the consideration exceeds Rs. 25,00,00,000/‐ (Rupees Twenty Five Crore)Rs. 50 crore (Rupees Fifty Crore) in any Accounting Year (collectively the “Contracts”), the Concessionaire shall invite offers through open competitive bidding by means of e‐tendering and shall select the awardees in accordance with the policy specified under Clause 5.6.1.

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select the awardees in accordance with the policy specified under Clause 5.6.1.



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357. 5.9 RFP

Notwithstanding anything to the contrary contained in this Agreement, the engagement of employees, staff and personnel of the Concessionaire and of its Contractors and subcontractors shall always be subject to security clearance by the Designated GOI Agency and only persons having a valid security clearance shall be permitted on the Site…

We request the highlighted portion may be added to the clause.

Notwithstanding anything to the contrary contained in this Agreement, the engagement of employees, staff and personnel of the Concessionaire and of its Contractors and subcontractors shall always be subject to security clearance by the Designated GOI Agency, if required under Applicable Law, and only persons having a valid security clearance shall be permitted on the Site…

Accepted



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359. 5.13 RFP

The Concessionaire shall maintain a high standard in the appearance and aesthetic quality of the Airport and achieve integration of the Airport with the character of the surrounding landscape through both appropriate design and sensitive management of all visible elements. The Concessionaire shall engage professional architects and town planners of repute for ensuring

This provision will get covered in the Master Plan and the Drawings that the Concessionaire will submit. If there are certain architectural parameters, dimensions and designs that the Authority wants the Concessionaire to follow, the same should form part of the relevant Schedule and the same will get reflected in the Master Plan and the Design that the Concessionaire will submit. Accordingly, we suggest deletion of Article 5.13.

The Concessionaire shall maintain a high standard in the appearance and aesthetic quality of the Airport and achieve integration of the Airport with the character of the surrounding landscape through both appropriate design and sensitive management of all visible elements. The Concessionaire shall engage professional architects and town planners of repute for ensuring that the design of the Airport meets the aforesaid aesthetic standards.

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that the design of the Airport meets the aforesaid aesthetic standards.



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360 5.15 RFP

……..The Concessionaire hereby agrees to not to have any shareholding interest or otherwise in any entity, or any other form of arrangement with any person, which may allow it to undertake or perform any other business activity. The Concessionaire hereby agrees to not to have any subsidiary or joint venture or any other form of arrangement, or be or become directly or indirectly engaged,

We understand that in the last paragraph, the term ‘any business’ means any business other than what is contemplated under this Agreement for the Concessionaire. Please confirm and insert the highlighted text for clarity.

……..The Concessionaire hereby agrees to not to have any shareholding interest or otherwise in any entity, or any other form of arrangement with any person, which may allow it to undertake or perform any other business activity. The Concessionaire hereby agrees to not to have any subsidiary or joint venture or any other form of arrangement, or be or become directly or indirectly engaged, concerned or interested in any business other than what is permitted for the Concessionaire under this Agreement.

Accepted



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concerned or interested in any business.



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363. 6.5 RFP

Upon request made by the Concessionaire to this effect, the Authority shall, in conformity with any regulations or guidelines that may be notified by the Government of India or the Reserve Bank of India, as the case may be, permit and enable the Concessionaire to secure refinancing, in whole or in part, of the Debt Due on such terms as may be agreed upon between the

Please note that the responsibility as well as the right for refinancing is that of the Concessionaire. Accordingly, no prior approval should be required for the same so long it is in accordance with the Concession Agreement. Hence, highlighted portion should be deleted. 6.4 Heading may also add words “Restructuring” and “Take‐over Financing” after the word “refinancing”. Such “restructuring” and “take‐over financing” may also be added after the word refinancing where it is relevant. Since all such refinancing/take‐over financing /restructuring of the debt are regulated by RBI Guidelines relating to all infrastructure projects, we feel that prior consent from Authority may not be needed as the whole process of such financial activities required be done by experts with the object to make the Project to survive without leading to termination of any contracts or not to allow the Concessionaire to become insolvent or to increase any liability on the Authority. In fact, such approaches of refinancing /restructuring/take‐over of the existing debt by other lenders also protect the interest of Authority and Users.

Upon request made by the Concessionaire to this effect, the Authority shall, in conformity with any regulations or guidelines that may be notified by the Government of India or the Reserve Bank of India, as the case may be, permit and enable the Concessionaire to secure refinancing, in whole or in part, of the Debt Due on such terms as may be agreed upon between the Concessionaire and the entity providing such refinancing; provided, however, that the refinancing hereunder shall always be subject to the prior consent of the Authority, which consent shall not be unreasonably withheld,…

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Concessionaire……



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365. 9.2 RFP

Upon occurrence of a Concessionaire Default or failure to meet any Condition Precedent, the Authority shall,

We request that prior notice be given to the Concessionaire before invocation of the Performance Security.

Upon occurrence of a Concessionaire Default or failure to meet any Condition Precedent, the Authority shall,

As per RFP

368 9.4 and 9.5 RFP

Deemed Performance Security

Article 9.3 related to creation of deemed performance security is requested to be deleted. ‐NA‐ As per RFP


The Authority hereby grants to the Concessionaire, subject to security restrictions and other terms of this Agreement, access to the Site for carrying out any surveys, investigations and soil…

Please clarify the security restrictions on right of way. ‐NA‐ As per RFP



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The Concessionaire hereby irrevocably appoints the Authority (acting directly or through a nominee) to be its true and lawful attorney, to execute and sign in the name of the Concessionaire a transfer or surrender of the license granted hereunder at any time after the Concession Period has expired or has been terminated earlier in terms hereof if so required in accordance with any Applicable

Until the effective date of termination or expiry (as the case may be) Concessionaire to continue with such license.

The Concessionaire hereby irrevocably appoints the Authority (acting directly or through a nominee) to be its true and lawful attorney, to execute and sign in the name of the Concessionaire a transfer or surrender of the license granted hereunder at any time after the Concession Period has expired or has been effectively terminated earlier in terms hereof if so required in accordance with any Applicable Laws at such time, provided Termination Payments (if applicable) shall have been paid in full., a sufficient proof of which will be the declaration of any duly authorized officer of the Authority, and the Concessionaire consents to it being registered for this purpose.

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Laws at such time, a sufficient proof of which will be the declaration of any duly authorized officer of the Authority, and the Concessionaire consents to it being registered for this purpose.



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377. Article 10.3.6 RFP

… Save and except that Damages for delay in procurement thereof shall commence after a period of 270 (two hundred and seventy) days from the Appointed Date, instead of 180 (ninety) days as specified in Clause 10.3.4. …

Correction of typographical error. Please provide land details in form of Annex – I of Schedule A for the bidders to determine sufficiency of the land.

… Save and except that Damages for delay in procurement thereof shall commence after a period of 270 (two hundred and seventy) days from the Appointed Date, instead of 180 (ninety one hundred eighty) days as specified in Clause 10.3.4…

Accepted



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381. 10.8 RFP

It is expressly agreed that mining, geological or archaeological rights do not form part of the license granted to the Concessionaire under this Agreement and the Concessionaire hereby acknowledges that it shall not have any mining rights or interest in the underlying minerals, fossils, antiquities, structures or other remnants or things either of particular geological

This clause should be subject to the provisions of the Mines and Minerals Act.

It is expressly agreed that mining, geological or archaeological rights do not form part of the license granted to the Concessionaire under this Agreement and the Concessionaire hereby acknowledges that it shall not have any mining rights or interest in the underlying minerals, fossils, antiquities, structures or other remnants or things either of particular geological or archaeological interest and that such rights, interest and property on or under the Site shall vest in and belong to the Authority or the concerned Government Instrumentality, unless the Concessionaire has obtained consent under the Mines and Minerals Act…

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or archaeological interest and that such rights, interest and property on or under the Site shall vest in and belong to the Authority or the concerned Government Instrumentality...



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Any charges and taxes in respect of the Site and if paid by the Authority in accordance with Applicable Laws, shall be reimbursed by the Concessionaire to the Authority……

Charges and taxes prior to the Appointed Date should not be required to be paid by the Concessionaire.

Any charges and taxes arising after the Appointed Date in respect of the Site and if paid by the Authority in accordance with Applicable Laws, shall be reimbursed by the Concessionaire to the Authority……

Accepted


The Concessionaire shall be responsible for the payment of all the charges to the Authority, as may be leviable under the Applicable Laws, for the available built‐up

Charges and taxes prior to the Appointed Date should not be required to be paid by the Concessionaire.

The Concessionaire shall be responsible for the payment of all the charges arising after the Appointed Date to the Authority, as may be leviable under the Applicable Laws, for the available built‐up area at the Site.

Accepted



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area at the Site.



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386 11.4 RFP

The Authority shall assist the Concessionaire in obtaining the Applicable Permits for felling of trees to be identified by the Authority for this purpose if and only if such trees cause a material adverse effect on the construction, operation or maintenance of the Airport. In the event of any delay in felling thereof for reasons beyond the control of the Concession

Request the suggested revision for clarity purposes. Also while the cost of felling of trees shall be borne by the Concessionaire, any revenues accruing to the Authority, if any, should be paid after compensating the Concessionaire for such costs and expenses.

The Authority shall assist the Concessionaire in obtaining the Applicable Permits for felling of trees to be identified by the Authority for this purpose of this Agreement if and only if such trees cause a material adverse effect on the construction, operation or maintenance of the Airport. In the event of any delay in felling thereof for reasons beyond the control of the Concessionaire, it shall be excused for failure to perform any of its obligations hereunder if such failure is a direct consequence of delay in the felling of trees. The costs and expense in respect of felling of trees shall be borne by the Concessionaire and any revenues thereof shall be paid to the Authority, after adjusting the cost and expense in respect of felling of trees thereof.

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aire, it shall be excused for failure to perform any of its obligations hereunder if such failure is a direct consequence of delay in the felling of trees. The costs and expense in respect of felling of trees shall be borne by the Concessionaire and any revenues thereof shall be paid to the Authority.



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…The Authority and/ or the Independent Engineer shall give their observations, if any, within 7 (seven) days of receipt of the revised Architectural Design.

In case the Authority and/or the Independent Engineer does not respond, the Concessionaire may proceed as it may have an implication on the completion schedule. Thus, failure to respond should be deemed as acceptance.

…The Authority and/ or the Independent Engineer shall give their observations, if any, within 7 (seven) days of receipt of the revised Architectural Design. If responses by the Authority and/or the Independent Engineer are not provided within the stipulated time period, it shall be deemed as acceptance by the Authority and/or the Independent Engineer.

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The Concessionaire shall not be obliged to await the observations of the Authority on the Architectural Design submitted pursuant hereto beyond the period of 30 (thirty) days specified in Clause 12.1.3, and may begin Construction Works at its own discretion and risk. For the avoidance of doubt, no review and/or observation of the Authority or the Independent Engineer

In case the Authority does not respond, the Concessionaire may proceed as it may have an implication on the completion schedule. Thus, failure to respond in stipulated time should be deemed as acceptance.

The Concessionaire shall not be obliged to await the observations of the Authority on the Architectural Design submitted pursuant hereto beyond the period of 30 (thirty) days specified in Clause 12.1.3, and may begin Construction Works and failure of Authority or Independent Engineer to respond within the period of 30 (thirty) days shall be deemed as acceptance by the Authority. At its own discretion and risk……..

Accepted



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and/or their failure to review and/or convey their observations on the Architectural Design shall relieve the Concessionaire of its obligations and liabilities under this Agreement in any manner nor shall the Authority or the Independent Engineer be liable for the same in any manner.



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In the event any disagreement arises between the Concessionaire or the Authority as per Clause 12.4.1 or Clause 12.4.2, and notifies the other Party of its intent, a Dispute shall be deemed to have arisen and the provisions of ARTICLE 43 shall apply mutatis mutandis for resolution thereof, provided that the arbitrators to be appointed under the provisions

a) Where the modification suggested by the Authority or the Independent Engineer is accepted or Concessionaire’s modifications are not accepted, Concessionaire shall be liable to reimburse costs of arbitrators. b) We request you to please revise the limit on the amount of reimbursement stated in the said provision to Rs. 50,000 per day.

In the event any disagreement arises between the Concessionaire or the Authority as per Clause 12.4.1 or Clause 12.4.2, and notifies the other Party of its intent, a Dispute shall be deemed to have arisen and the provisions of ARTICLE 43 shall apply mutatis mutandis for resolution thereof, provided that the arbitrators to be appointed under the provisions of Clause 43.3 shall only consist of eminent architects of international repute. The fee payable by the Authority to such arbitrators shall, in case the modification suggested by the Authority or the Independent Engineer is accepted or the one has been proposed by the Concessionaire is not accepted by the arbitrators, be reimbursed by the Concessionaire subject to a limit of Rs. 5,00,000 (Rupees Five Lakh) per day.

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of Clause 43.3 shall only consist of eminent architects of international repute. The fee payable by the Authority to such arbitrators shall, in case the modification has been proposed by the Concessionaire, be reimbursed by the Concessionaire subject to a limit of Rs. 5,00,000 (Rupees Five Lakh) per day.



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393. Article 12.3.3. RFP

The Independent Engineer and the Authority shall, within 30 (thirty) days of the receipt of the drawings, review the same and convey its respective observations to the Concessionaire with particular reference to their conformity or otherwise with the Scope of the Project, the Specifications and Standards or otherwise. The Concessionaire shall not be obliged to

In case the Independent Engineer does not respond, the Concessionaire may proceed as it may have an implication on the completion schedule. Thus, failure to respond in stipulated time should be deemed as acceptance.

…….The Concessionaire shall not be obliged to await the observations of the Independent Engineer or the Authority on the drawings submitted pursuant hereto beyond the said 30 (thirty) days period and may begin or continue Construction Works, at its own discretion and risk. And failure of Independent Engineer to respond within the period of 30 (thirty) days shall be deemed as acceptance by the Authority. Failure of the Independent Engineer shall be deemed as acceptance by the Independent Engineer.

Accepted



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await the observations of the Independent Engineer or the Authority on the drawings submitted pursuant hereto beyond the said 30 (thirty) days period and may begin or continue Construction Works, at its own discretion and risk.



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No review and/or observation of the Independent Engineer and/or its failure to review and/or convey its observations on any Drawings shall relieve the Concessionaire of its obligations and liabilities under this Agreement in any manner nor shall the Independent Engineer or the Authority be liable for the same in any manner.

The Authority/the Independent Engineer should be responsible for the reviews/observation provided by them.

No review and/or observation of the Independent Engineer and/or its failure to review and/or convey its observations on any Drawings shall relieve the Concessionaire of its obligations and liabilities under this Agreement in any manner nor shall the Independent Engineer or the Authority be liable for the same in any manner.

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In the event that the Phase I of the Airport is not completed and Phase I COD does not occur within 365 (three hundred sixty five) days from the Scheduled Completion Date, unless the delay is on account of reasons solely attributable to the Authority or due to Force Majeure, the Authority shall be entitled to terminate this Agreement……

The Concessionaire should not be liable for delays due to third parties.

In the event that the Phase I of the Airport is not completed and Phase I COD does not occur within 365 (three hundred sixty five) days from the Scheduled Completion Date, unless the delay is on account of reasons solely attributable to the Authority or any third party or due to Force Majeure, the Authority shall be entitled to terminate this Agreement……

As per RFP

397. 12.6 RFP Development of

We request to insert enabling provisions whereby the ‐NA‐ As per RFP



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Project Facilities

Concessionaire is allowed to sub‐contract for construction, operation, maintenance, etc., of the Project Facilities.



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401. 14.4 RFP

14.4 Completion of Punch List items 14.4.1 … (b) 0.2% (zero point two percent) of the cost of completing such items as estimated by the Independent Engineer. Subject to payment of such Damages, the Concessionaire shall be entitled to a further period not exceeding 120 (one hundred and twenty) days for completion of the Punch List items. If completion of any item is delayed for reasons

Please provide a limitation on the Concessionaire’s liability.

14.4 Completion of Punch List items 14.4.1 … (b) 0.2% (zero point two percent) of the cost of completing such items as estimated by the Independent Engineer, subject to a maximum of 10% of Performance Security. Subject to payment of such Damages, the Concessionaire shall be entitled to a further period not exceeding 120 (one hundred and twenty) days for completion of the Punch List items. If completion of any item is delayed for reasons solely attributable to the Authority or any third party or due to Force Majeure, the completion date thereof shall be determined by the Independent Engineer in accordance with Good Industry Practice. 14.4.2 ... Failure of the Concessionaire to complete all the Punch List items within the time set forth in Clause 14.4.1 for any reason, other than conditions constituting Force Majeure or for reasons solely attributable to the Authority or any third party, shall entitle the Authority to terminate this Agreement.

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solely attributable to the Authority or due to Force Majeure, the completion date thereof shall be determined by the Independent Engineer in accordance with Good Industry Practice. 14.4.2 ... Failure of the Concessionaire to complete all the Punch List items within the time set forth in Clause 14.4.1 for any reason, other than conditions constituting Force



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Majeure or for reasons solely attributable to the Authority, shall entitle the Authority to terminate this Agreement.



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Notwithstanding anything to the contrary contained in Clause 14.5.1, the Authority may, at any time after receiving a report from the Independent Engineer under that Clause, direct the Independent Engineer to issue a Provisional Certificate under Clause 14.3, and such direction shall be complied forthwith.

If the Authority directs, the Completion Certificate should be provided to the Concessionaire.

Notwithstanding anything to the contrary contained in Clause 14.5.1, the Authority may, at any time after receiving a report from the Independent Engineer under that Clause, direct the Independent Engineer to issue a Provisional Certificate or Completion Certificate under Clause 14.3 or Clause 14.2, as applicable, and such direction shall be complied forthwith.

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..…In the event of any Dispute relating to the declaration of relevant COD hereunder, the Dispute Resolution Procedure shall apply.

The insertion is suggested for fairness.

……the Dispute Resolution Procedure shall apply. Further, the Authority shall pay Damages to the Concessionaire in a sum calculated at the rate of 0.1% of the amount of Performance Security for delay of each day until COD is achieved and the Concessionaire would not be held liable for any default or breach of Agreement on account of delay in declaring COD.

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Notwithstanding anything to the contrary contained in this Agreement, any provision of additional works and services which are not specified in the Master Plan as set out in Schedule A and are necessary for the performance of the Aeronautical Services, shall be considered as change of scope (“Change of Scope”). Any Change of Scope shall be made in accordance with the

The cost for change of scope needs to be borne by the Authority.

Notwithstanding anything to the contrary contained in this Agreement, any provision of additional works and services which are not specified in the Master Plan as set out in Schedule A and are necessary for the performance of the Aeronautical Services, shall be considered as change of scope (“Change of Scope”). Any Change of Scope shall be made in accordance with the provisions of this ARTICLE 16 and the costs thereof shall be expended by the Concessionaire and reimbursed to it by the Authority in accordance with Clause 16.4.

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provisions of this ARTICLE 16.



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…... Upon reaching an agreement, the Authority shall issue an order (the “Change of Scope Order”) requiring the Concessionaire to proceed with the performance thereof. In the event that the Parties are unable to agree, the Authority may, by issuing a Change of Scope Order, require the Concessionaire to proceed with the performance thereof pending resolution

Revision is requested as during the pendency of the dispute, the Concessionaire should be obliged to carry on the works as per the original Scope of the Project.

…... Upon reaching an agreement, the Authority shall issue an order (the “Change of Scope Order”) requiring the Concessionaire to proceed with the performance thereof. In the event that the Parties are unable to agree, the Authority may, by issuing a notice Change of Scope Order, require the Concessionaire to proceed with the performance of the Scope of the Project thereof pending resolution of the Dispute.

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of the Dispute.


Notwithstanding anything to the contrary

We request that no third party should be allowed to undertake any Change of Scope works at the Airport. ‐NA‐ As per RFP



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contained in this ARTICLE 16, the Authority may, after giving notice to the Concessionaire and considering its reply thereto, award any works or services forming part of the Change of Scope….…



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The works or services undertaken in accordance with this Clause 16.3 shall conform to the Specifications and Standards and shall be carried out in a manner that minimizes disruption in the implementation, operation and management of the Airport. The provisions of this Agreement, insofar as they relate to Construction Works and Tests, shall apply mutatis mutandis to

If certain portion of works is carried out by any person so selected by the Authority, the Authority shall ensure that it is in accordance with the Specifications and Standards of this Agreement.

The Authority shall ensure that the in case the works or services undertaken in accordance with this Clause 16.3 is undertaken by persons other than the Concessionaire, then it shall conform to the Specifications and Standards and shall be carried out in a manner that minimizes disruption in the implementation, operation and management of the Airport……

Accepted



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the works carried out under this Clause 16.3.


If the Concessionaire shall

Please provide rationale for making payment of 80% of the sum saved to the Authority. Please note that Concessionaire does not benefit in any way if a particular project is either dropped or cannot be completed due to any reason. If Concessionaire completes any project, it recovers the cost of same along with the

‐NA‐ As per RFP



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have failed to complete any Construction Works on account of Force Majeure or for reasons attributable to the Authority, the Authority may, in its discretion, require the Concessionaire….…

carrying cost through Fees, and in case of any savings due to non‐ execution/completion of any project, Concessionaire will not be able to recover anything through Fees. Further, AERA will not allow this saving/80% payment as a pass‐through, due to non‐ execution/completion of the project. Therefore, payment of 80% of the sum saved to the Authority will tantamount to out of pocket outgo for the Concessionaire, which is unjustifiable.



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Notwithstanding anything contained contrary elsewhere, the Concessionaire shall: (a) make the Airport and the Project Facilities available, free of cost and to the extent necessary, for meeting exigencies such as war, natural disaster/ calamities, internal disturbances etc. in accordance with the provisions of the Union War Book of the GOI; (b) provide uninterrupted landing and parking

1. Concession period to be proportionately increased in case Airport and Project Facilities are made available for meeting exigencies. 2. Landing and parking facilities for defense to be specific and stated upfront. 3. Periodic and surprise inspections are unreasonable and may only be carried by prior notice.

Notwithstanding anything contained contrary elsewhere, the Concessionaire shall: (a) make the Airport and the Project Facilities available, free of cost and to the extent necessary, for meeting exigencies such as war, natural disaster/ calamities, internal disturbances etc. in accordance with the provisions of the Union War Book of the GOI; (b) provide uninterrupted landing and parking facilities for Defence and other paramilitary aircrafts, free of landing and parking charges, and also provide the infrastructure facilities and equipment required for Defence operations; (c) make available to the security agencies access to the Airport for periodic and surprise inspections;…

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facilities for Defence and other paramilitary aircrafts, free of landing and parking charges, and also provide the infrastructure facilities and equipment required for Defence operations; (c) make available to the security agencies access to the Airport for periodic and surprise inspections;…



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… (b) 0.1% (zero point one per cent) of the cost of such repair or rectification as estimated by the Independent Engineer. Recovery of such Damages shall be without prejudice to the rights of the Authority under this Agreement, including the right of Termination thereof.

Please provide limitation of liability of the Concessionaire.

… (b) 0.1% (zero point one per cent) of the cost of such repair or rectification as estimated by the Independent Engineer, limited to a maximum amount of the 25% of the Performance Security. Recovery of such Damages shall be without prejudice to the rights of the Authority under this Agreement, including the right of Termination thereof.

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… Remedial measures at the risk and cost of the Concessionaire, and to recover its cost from the Concessionaire. In addition to recovery of the aforesaid cost, a sum equal to 20% (twenty per cent) of such cost shall be paid by the Concessionaire to the Authority as Damages. For the avoidance of doubt, the right of the Authority under this Clause 17.20.1 shall be without

Suggested revision is requested as the Concessionaire should be liable for actual costs of remedial measures.

… Remedial measures at the risk and cost of the Concessionaire, and to recover its cost from the Concessionaire. In addition to recovery of the aforesaid cost, a sum equal to 20% (twenty per cent) of such cost shall be paid by the Concessionaire to the Authority as Damages. For the avoidance of doubt, the right of the Authority under this Clause 17.20.1 shall be without prejudice to its rights and remedies provided under Clause 17.19.

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prejudice to its rights and remedies provided under Clause 17.19.



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418 17.12 (17.7) RFP

Save and except as otherwise expressly provided in this Agreement, in the event that the Airport or any part thereof suffers any loss or damage during the Concession Period from any cause whatsoever, the Concessionaire shall, at its cost and expense, rectify and remedy such loss or damage forthwith so that the Airport conforms to the provisions of this Agreement…

The suggested revision is requested so that the Concessionaire is liable to make good the expense which is caused by its own acts or omissions.

Save and except as otherwise expressly provided in this Agreement, in the event that the Airport or any part thereof suffers any loss or damage during the Concession Period from any cause solely attributable to the Concessionaire whatsoever, the Concessionaire shall, at its cost and expense, rectify and remedy such loss or damage forthwith so that the Airport conforms to the provisions of this Agreement….

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The Concessionaire shall supply electricity and water, at its own cost and expense, to the Reserved Area within the Terminal Building.

Suggested revision is requested as the Concessionaire should not be expected to bear charges for the entities referred in Article 18.8.1

19.4.3 The Concessionaire shall supply electricity and water, on chargeable basis at its own cost and expense, to the Reserved Area within the Terminal Building.

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422 18.9 RFP

The Concessionaire shall provide and maintain, at all times, VIP lounges in the Terminal Building for the use and comfort of the guests and personnel as may be notified by GOI and/or the Authority to the Concessionaire from time to time.

Please clarify whether the Concessionaire is permitted to charge for such facilities.

The Concessionaire shall provide and maintain, at all times, VIP lounges in the Terminal Building for the use and comfort of the guests and personnel as may be notified by GOI and/or the Authority to the Concessionaire from time to time, for which the Concessionaire may charge as it may deem appropriate.

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The Concessionaire shall operate and maintain the Cargo Facilities and provide the associated services to airlines and consignors in accordance with the provisions of this Agreement, Applicable Laws and Good Industry Practice.

Cargo should be allowed to be sub‐licensed at the option of Concessionaire to bring world class operational experience.

The Concessionaire shall, or cause to, operate and maintain the Cargo Facilities and provide the associated services to airlines and consignors in accordance with the provisions of this Agreement, Applicable Laws and Good Industry Practice.

Accepted. As per query 142



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The Concessionaire shall provide, free of charge and in accordance with Good Industry Practice, operational space and other facilities to the customs, security, quarantine and other Designated GOI Agencies, as the case may be, for discharging their statutory functions.

Suggested revision is requested for clarity.

The Concessionaire shall provide, free of charge, except the cost of utilities such as electricity, water etc., and in accordance with Good Industry Practice, operational space and other facilities to the customs, security, quarantine and other Designated GOI Agencies, as the case may be, for discharging their statutory functions.

As per RFP


The Authority shall, upon fulfilment of the applicable terms and conditions by the Concessionaire, at the

Please clarify the specific terms and conditions to be fulfilled by the Concessionaire in this regard. ‐NA‐ As per RFP



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request of the Concessionaire, procure the execution of an agreement between AAI and the Concessionaire, substantially in the form set forth in Schedule T …



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426 19.6 RFP

(i) provide at its own cost and expense, continuous supply of electricity and water that may be required by the Authority and the Designated GOI Agencies, as the case may be, for provision of Reserved Services;

Suggested revision is requested to ensure that Concessionaire does not bear expense for these utilities.

(i) provide, on a chargeable basis, at its own cost and expense, continuous supply of electricity and water that may be required by the Authority and the Designated GOI Agencies, as the case may be, for provision of Reserved Services;

As per RFP



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At all times during Operation Period, the Concessionaire shall, no later than 10 (ten) days after the close of each quarter, furnish to the Authority a quarterly management report, which shall be a summary of…(c) key financial parameters for the quarter, as benchmarked against the quarterly budget, the reasons for shortfall, if any, and proposals to remedy the same; and (d)

Deletion of the suggested articles is requested as it is very onerous as well as not required under the scope of this concession agreement for the Concessionaire to provide quarterly budget, shortfalls etc.

At all times during Operation Period, the Concessionaire shall, no later than 10 (ten) days after the close of each quarter, furnish to the Authority a quarterly management report, which shall be a summary of…(c) key financial parameters for the quarter, as benchmarked against the quarterly budget, the reasons for shortfall, if any, and proposals to remedy the same; and (d) quarterly budget for the succeeding quarter, along with strategies for improving the Airport’s financial performance.

As per RFP



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quarterly budget for the succeeding quarter, along with strategies for improving the Airport’s financial performance.



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430 21.4 RFP Traffic Sampling

Request to delete the clause as the short term survey of traffic will not represent the true traffic pattern of the airport given the aspects of seasonality etc. ‐NA‐ As per RFP


In addition to the User Survey specified in Clause 22.7.1, the Authority may, at its cost and expense, engage an independent expert agency to conduct a sample survey of User satisfaction……

ASQ survey is very comprehensive and widely accepted mechanism for user satisfaction survey conducted by a third party in accordance with Good Industry Practice. Survey by any other third party is not required. Accordingly, we request to delete this clause.

In addition to the User Survey specified in Clause 22.7.1, the Authority may, at its cost and expense, engage an independent expert agency to conduct a sample survey of User satisfaction……

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In the event that the User Survey reveals that more than 20% (twenty percent) of the Users surveyed are not satisfied with the performance of the Concessionaire and rank the services as poor or fair, the Authority may report the findings of the User Survey to Concessionaire for taking appropriate action. In this case the cost of such survey shall be reimbursed by the Concession

Please delete this clause in light of the above point.

In the event that the User Survey reveals that more than 20% (twenty percent) of the Users surveyed are not satisfied with the performance of the Concessionaire and rank the services as poor or fair, the Authority may report the findings of the User Survey to Concessionaire for taking appropriate action. In this case the cost of such survey shall be reimbursed by the Concessionaire to the Authority.

As per RFP



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aire to the Authority.

435. 23.2 RFP Duties and functions

Authority is requested to limit the role of Independent Engineer to capital expenditure / projects only, and not to operational phase. ‐NA‐ As per RFP

436 23.3 RFP Remuneration

We request Authority to appoint an Independent Engineer out of 5 proposed names in consultation with Concessionaire. ‐NA‐ As per RFP



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437.

23.4.2 [Termination on of Agreement ]

RFP

23.4.2) ……if any difference or disagreement between the Authority and the Concessionaire remains unresolved, the Dispute shall be settled in accordance with the Dispute Resolution

The Dispute Resolution Procedure being a time consuming process, we propose that an extension of time period in proportion to the delay caused due to the aforesaid reasons ‐NA‐ As per RFP

438

& 23.5 [Dispute Resolution]

RFP

Procedure…… 23.5) If either Party disputes any advice, instruction, decision or direction of the Independent Engineer…….

Should be granted to the Concessionaire and it should not be held responsible for such delay. As per RFP



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All costs, expenses, taxes, cess, fees and charges relating to City Side Development, other than taxes on property, shall be borne by the Concessionaire…

All taxes prior to the Appointed Date shall be borne by the Authority. Please also clarify as to who will bear the service tax.

All costs, expenses, taxes, cess, fees and charges relating to City Side Development, other than taxes on property, and arising on or after the Appointed Date shall be borne by the Concessionaire…

Accepted for Authority to bear the applicable taxes till Appointed Date.


The Concessionaire acknowledges and agrees that it shall not sub‐license, assign or in any manner create an Encumbrance on any part of City Side Development except in accordance with the provisions

The Concessionaire should have the right to sub‐ license development of City Side. The revision has also been suggested to make this clause consistent with article 24.6.1 and also to make it in accordance with the exception envisaged under clause 5.4.2.

The Concessionaire acknowledges and agrees that it shall not sub‐license, assign or in any manner create an Encumbrance on any part of City Side Development except in accordance with the provisions of Clause 5.2.

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of Clause 5.2.


Subject to the provisions of Clause 5.4 and this Article 28, the Concessionaire may sub‐ license the Project Assets comprising City Side Development such that the period and validity of such sub‐

The requested revision in Article 24.4.2 above is also to ensure that it does not contradict with this Article 24.6.1. ‐NA‐ As per RFP



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license shall not extend beyond the period specified in Clause 28.7?



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Notwithstanding anything to the contrary contained in Clause 24.6.1, the Concessionaire shall not sub‐ license, assign or in any manner create an Encumbrance on any Project Asset forming part of City Side Development at any time prior to the 2nd (second) anniversary of the Appointed Date. Provided, however, that the restraint hereunder shall not apply to advertising or to any

This article 24.6.2 is requested to be deleted as otherwise the Concessionaire would not only lose an important source of fund raising, but also would not be able to tie up commercial arrangements with respect to City Side Development.

Notwithstanding anything to the contrary contained in Clause 24.6.1, the Concessionaire shall not sub‐ license, assign or in any manner create an Encumbrance on any Project Asset forming part of City Side Development at any time prior to the 2nd (second) anniversary of the Appointed Date. Provided, however, that the restraint hereunder shall not apply to advertising or to any other Encumbrance created for a period not exceeding 6 (six) months. For the avoidance of doubt, the restriction imposed herein shall not apply to assignment under the Substitution Agreement.

As per RFP



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other Encumbrance created for a period not exceeding 6 (six) months. For the avoidance of doubt, the restriction imposed herein shall not apply to assignment under the Substitution Agreement.



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Notwithstanding anything to the contrary contained in this Agreement, but subject to the provisions of Clause 24.6.2, the Concessionaire shall not sub‐ license, assign or in any manner create an Encumbrance on any Project Asset forming part of City Side Development without prior written approval of the Authority, which approval the Authority may, in its discretion,

Prior written approval should not be required for sub‐licensing of City Side Development. The Concessionaire is anyways complying with best industry practice and sub licensing while keeping in view the national security and public interest and therefore restriction should be on such sub licensing where it has or may have a Material Adverse Effect.

Notwithstanding anything to the contrary contained in this Agreement, but subject to the provisions of Clause 24.6.2, the Concessionaire shall not sub‐ license, assign or in any manner create an Encumbrance on any Project Asset forming part of City Side Development without prior written approval of the Authority, which approval the Authority may, in its discretion, deny only if such sub‐lease, assignment or Encumbrance has or may have a material adverse effect…

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deny only if such sub‐lease, assignment or Encumbrance has or may have a material adverse effect…



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445.

Sub‐ licensing/Sub‐ contracting

RFP

We request you to confirm/insert enabling provisions to enable the Concessionaire to sub‐ license such activities (all Aeronautical, Non Aeronautical Services) which it may in its discretion determine for the purposes of effective implementation/operations of the Project.

‐NA‐ As per RFP



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The Concessionaire agrees and undertakes that in respect of any sub‐lease, assignment or other Encumbrance on any Project Asset forming part of City Side Development, it is entitled to receive a monthly fee, charge, rent or revenue share, as the case may be, and shall not accept any other amount, whether by way of security, deposit, loan, advance or under any

Request the suggested revision. Such sub‐licensing is important for commercial viability of the project and therefore the Concessionaire should have right to enter into commercial arrangements as per prevalent market/commercial conventions. Security deposit in case of commercial property development acts as mechanism to ensure performance by the sub‐ licensees, accordingly it is requested to amend the clause suitably.

The Concessionaire agrees and undertakes that in respect of any sub‐lease, assignment or other Encumbrance on any Project Asset forming part of City Side Development, it is entitled to receive a monthly fee, charge, rent or revenue share or as the case may be, and shall not accept any other amount, whether by way of security, deposit, loan, advance or under any other head whatsoever, that exceeds the payment due to the Concessionaire for and in respect of the following year by way of fee, charge, rent or revenue share in respect of such sub‐license, assignment or other Encumbrance. For the avoidance of doubt, …

As per RFP



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other head whatsoever, that exceeds the payment due to the Concessionaire for and in respect of the following year by way of fee, charge, rent or revenue share in respect of such sub‐license, assignment or other Encumbrance. For the avoidance of doubt, …



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The Concessionaire shall, upon occurrence of Financial Close, notify the Authority forthwith, and shall have provided to the Authority, at least 2 (two) days prior to the Financial Close, 3 (three) true copies of the Financial Package and the Financial Model,

Financial Package and the Financial Model to be provided at the Financial Close.

The Concessionaire shall, upon occurrence of Financial Close, notify the Authority forthwith, and shall have provided to the Authority, along with the at least 2 (two) days prior to the Financial Close, 3 (three) true copies of the Financial Package and the Financial Model, …

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449. New clause RFP

A new clause 25.1.3 to be inserted

In case the financial close is dependent on certain conditions, which are to be fulfilled by the Authority only, Concessionaire shall not be able to achieve the Financial Close until such conditions precedent are fulfilled by the Authority. Accordingly, request for this insertion.

The Concessionaire shall achieve the Financial Close in accordance with clause 25.1.1 hereof, provided that the Concessionaire shall not be in breach of this obligation if its failure to fulfill this obligation is attributable to a breach or delay by the Authority of any of the conditions precedent to the Financial Close as may be determined the Senior Lenders, which may be required to be fulfilled by the Authority.

As per RFP



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… The Authority shall be entitled to encash therefrom an amount equal to the Bid Security.

Request the suggested revision.

… The Authority shall be entitled to encash therefrom an amount equal to the Bid Security, if the default has solely occurred due to Concessionaire’s default.

As per RFP


Without prejudice to the provisions of Clause 27.1, but subject to Clause 27.2.2, the Concessionaire agrees to pay to the Authority for the year commencing from the day falling after 10 (ten) years of the occurrence of COD, a

Component of the formula stated in clause 27.2.1 needs to be further elaborated. Further, please confirm that the Gross Revenue calculation will be done as per Indian GAAP and not as per Ind‐AS (IFRS) even if the Concessionaire is required to maintain the books as per Ind‐AS (IFRS) at a later date. Please also confirm that any notional revenues accounted (such as construction revenue, straight lining of rentals, NPV of deposits, etc.) in the books of accounts in accordance with the Ind‐AS will not be included in the definition of Gross Revenue. It should be clarified that for the calculation of 30% shared till, AERA would consider Non‐aeronautical Revenues as per Indian GAAP (prevailing on the date of issue of RFP).

‐NA‐

Gross Revenue will be computed on an annual basis for an Accounting Year, in accordance with the Indian Generally Accepted Accounting Principles, as applicable on the date of the issuance of the RFP.



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revenue share……


The Concession Fees shall be payable in advance within 7 (seven) days of the commencement of each Concession Year during the Concession Period.

Request to ensure that the Concessionaire pays the Concession fee on realization basis so far as revenue from arrangement with the government entities is concerned. ‐NA‐ As per RFP



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The Concessionaire hereby acknowledges and agrees that it shall be bound to comply with such directions as the Designated GOI Agency may give for enforcing compliance of the provisions of Clause 28.2.1, including in respect of suspension of provision of such service to any scheduled or non‐scheduled air transport operator.

The Concessionaire should not be liable to air transport operators when acting in accordance with directions of the Designated GOI Agency.

The Concessionaire hereby acknowledges and agrees that it shall be bound to comply with such directions as the Designated GOI Agency may give for enforcing compliance of the provisions of Clause 28.2.1, including in respect of suspension of provision of such service to any scheduled or non‐scheduled air transport operator, without any liability for such suspension of services or otherwise.

Accepted



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459. 28.4 RFP

The Concessionaire hereby acknowledges and agrees that it is not entitled to any revision of the Aeronautical Charges or any other relief whatsoever from the Authority, AERA or any Government Instrumentality in any form or manner, save and except in accordance with the provisions of AERA and this Agreement…

“AERA” needs to be replaced with “AERA Act”.

The Concessionaire hereby acknowledges and agrees that it is not entitled to any revision of the Aeronautical Charges or any other relief whatsoever from the Authority, AERA or any Government Instrumentality in any form or manner, save and except in accordance with the provisions of AERA Act and this Agreement…

Accepted



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466 30.3.1.f RFP

(f) monthly proportionate provision of Debt Service due in an Accounting Year;

This should be subject to the agreement with the lenders. For example, there may be a quarterly or six monthly debt service payment, then monthly accrual may not be required. ‐NA‐ Accepted

467. 31.2(b) RFP

comprehensive third party liability insurance including injury to or death of personnel of the Authority or others who may enter the Airport;

Concessionaire should not be responsible for taking insurance for ‘others’, undefined persons entering the premises. Additionally, ‘Airport’ includes City Side Development. Therefore the Concessionaire should not be liable to provide comprehensive third party liability insurance to persons at these locations.

comprehensive third party liability insurance including injury to or death of personnel of the Authority or others who may enter the Airport;

As per RFP

468 31.6 RFP

All insurance policies in respect of the insurance obtained by the Concessionaire pursuant to this ARTICLE

We request deletion of this clause as it is too onerous on the Concessionaire. ‐NA‐ As per RFP



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31 shall include a waiver of any and all rights of …



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Notwithstanding anything to the contrary contained in this Agreement, the Authority has the right, but not the obligation, to appoint at its cost from time to time and at any time, another firm (“Additional Auditors”) from the Panel of Chartered Accountants to audit and verify all those matters, expenses, costs, realizations and things which the Statutory Auditors are

The revision is asked for the sake of operational convenience.

Notwithstanding anything to the contrary contained in this Agreement, the Authority has the right, but not the obligation, to appoint at its cost from time to time and at any time, another firm (“Additional Auditors”) from the Panel of Chartered Accountants to audit and verify all those matters, expenses, costs, realizations and things which the Statutory Auditors are required to do, undertake or certify pursuant to this Agreement. Before the commencement of audit, the Concessionaire shall be given prior notice of 15 (fifteen) days.

Accepted with prior notice of 7 days



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required to do, undertake or certify pursuant to this Agreement.



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471. 33.2(b) RFP

strikes or boycotts (other than those involving the Concessionaire, Contractors or their respective employees/representatives, or attributable to any act or omission of any of them) interrupting supplies and services to the Airport for a continuous period of 24 (twenty four) hours and an aggregate period exceeding 7 (seven) days in an Accounting Year, and not being an Indirect Political

We suggest deletion of a particular part of the clause as strikes by Contractors are not in control of the Concessionaire and are likely to cause delays/ losses to the Concessionaire.

strikes or boycotts (other than those involving the Concessionaire, Contractors or their respective employees/representatives, or attributable to any act or omission of any of them) interrupting supplies and services to the Airport for a continuous period of 24 (twenty four) hours and an aggregate period exceeding 7 (seven) days in an Accounting Year, and not being an Indirect Political Event set forth in Clause 33.3;

As per RFP



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Event set forth in Clause 33.3;



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472 33.4 & 46.3 RFP

A Political Event shall mean one or more of the following acts or events by or on account of any Government Instrumentality:

We suggested inclusion of change in law as a Political Event force majeure event as this may adversely affect the rights and obligations of the Concessionaire and affect the viability of the project. As it may be appreciated that as a matter of basic public policy of PPP Contract, the Authority needs to agree that if the law is changed in a way which detrimental (due to increase in cost or otherwise) to the Project Company, lenders and its investors, they will be compensated (by way of increase of tariff or by way reimbursement by Authority) accordingly. Therefore, provisions relating to “Change in Law” must be added as a separate Article and also define as per the prevalent practice in other PPP Contract and also be a part of Force Majeure as a Political Event.

A Political Event shall mean one or more of the following acts or events by or on account of any Government Instrumentality: (i) Any change in law.

Accepted



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473. 33.7.2(b) RFP

upon occurrence of an Indirect Political Event, all Force Majeure Costs attributable to such Indirect Political Event, and not exceeding the Insurance Cover for such Indirect Political Event, shall be borne by the Concessionaire, and to the extent Force Majeure Costs exceed such Insurance Cover, one half of such excess amount shall be reimbursed

The Authority should reimburse the cost in excess of Insurance Cover in full instead of only to the extent of one half of such expenses.

upon occurrence of an Indirect Political Event, all Force Majeure Costs attributable to such Indirect Political Event, and not exceeding the Insurance Cover for such Indirect Political Event, shall be borne by the Concessionaire, and to the extent Force Majeure Costs exceed such Insurance Cover, the entire one half of such excess amount shall be reimbursed by the Authority to the Concessionaire; and

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by the Authority to the Concessionaire; and



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474 36.3.1(b) RFP

70% (seventy percent) of the amount representing the Additional Termination Payment.

We suggest that 70% (seventy per cent) of the amount representing the Additional Termination Payment be modified to 90% (ninety per cent) of the amount representing the Additional Termination Payment.

90 70% (ninety seventy percent) of the amount representing the Additional Termination Payment.

As per RFP



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If Termination is on account of a Non‐Political Event, the Authority shall make a Termination Payment to the Concessionaire in an amount equal to 90% (ninety per cent) of the Debt Due less Insurance Cover.

The Concessionaire’s limitations towards on avoiding / minimizing damages related to Non‐ Political Event are the same for Indirect Political Event. Therefore, the Termination Payment for the two should be similar.

If Termination is on account of a Non‐Political Event, the Authority shall make a Termination Payment to the Concessionaire in an amount equal to 90% (ninety per cent) of the Debt Due less Insurance Cover (a) Debt Due less Insurance Cover; provided that if any insurance claims forming part of the Insurance Cover are not admitted and paid, then 80% (eighty per cent) of such unpaid claims shall be included in the computation of Debt Due; (b) 110% (one hundred and ten per cent) of the Adjusted Equity; and (c) an amount equivalent to the Additional Termination Payment less Insurance Cover; provided that if any insurance claims forming part of the Insurance Cover are not admitted and paid, then 80% (eighty per cent) of such unpaid claims shall be included in computation of the amount payable hereunder.

As per RFP



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If Termination is on account of an Indirect Political Event, the Authority shall make a Termination Payment to the Concessionaire in an amount equal to: …

In case of termination, all amounts paid by the Concessionaire shall be returned.

If Termination is on account of an Indirect Political Event or, Non‐Political Event, the Authority shall make a Termination Payment to the Concessionaire in an amount equal to: … In addition, the Performance Guarantee and Annual Premium as paid till the date of termination shall be returned to the Concessionaire forthwith.

As per RFP



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477. 33.11 RFP

If the Affected Party is rendered wholly or partially unable to perform its obligations under this Agreement because of a Force Majeure Event, it shall be excused from performance of such of its obligations to the extent it is unable to perform on account of such Force Majeure Event; provided that..…

In case of Force Majeure Event, extension of time should be granted.

If the Affected Party is rendered wholly or partially unable to perform its obligations under this Agreement because of a Force Majeure Event, it shall be excused from performance of such of its obligations to the extent it is unable to perform on account of such Force Majeure Event and corresponding extension of time shall be granted; provided that…

As per RFP



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… And which is used or created by the Concessionaire in performing its obligations under the Agreement.

Unauthorized use of IP may cause irreparable damage to the Concessionaire, and thus, should be used after prior approval.

… And which is used or created by the Concessionaire in performing its obligations under the Agreement. However, in such a scenario, any use of the Intellectual Property shall require prior approval of the Concessionaire and any breach by any party with regard to the Intellectual Property shall entitle the Concessionaire to claim damages as it may deem fit.

As per RFP



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36.1.1 Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then… (f) the Punch List items have not been completed within the period set forth in Clause 14.4.1;

Request revision for clarity.

36.1.1 Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then… (f) the Punch List items have not been completed within the period set forth in accordance with Clause 14.4.1;

Accepted



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482 36.1.1 (k) RFP

(k) an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;

A minor Escrow Default should not lead to Termination unless it causes a Material Adverse Effect.

(k) an Escrow Default has occurred which causes a Material Adverse Effect and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;

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Upon Termination on account of an Authority Default, the Authority shall pay to the Concessionaire, by way of Termination Payment, an amount equal to: (a) Debt Due; (b) 150% (one hundred and fifty per cent) of the Adjusted Equity; and (c) 115% (one hundred and fifteen per cent) of the amount representing the Additional Termination Payment.

In case of termination, all amounts paid by the Concessionaire shall be returned.

Upon Termination on account of an Authority Default, the Authority shall pay to the Concessionaire, by way of Termination Payment, an amount equal to: (a) Debt Due; (b) 150% (one hundred and fifty per cent) of the Adjusted Equity; and (c) 115% (one hundred and fifteen per cent) of the amount representing the Additional Termination Payment. In addition, the Performance Security/ Performance Guarantee shall be returned to the Concessionaire.

As per RFP



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Upon Termination on account of Concessionaire’s Default during the Construction Period, no Termination Payment shall be due and payable for and in respect of expenditure comprising the first 40% (forty percent) of the Total Project Cost and in the event of expenditure exceeding such 40% (forty percent) ……..

We request that calculation of termination payment during the Construction Period be calculated in accordance with article 36.3.1 (a). This article may please be revised accordingly. Further, this clause will make it improbable for Lenders to finance the Project unless the Concessionaire puts 40% of the Total Project Cost, as upfront Equity, which is not in line with the prevalent practice of any infrastructure project funding norms. Therefore, we request to modify this clause to make it reasonable and practical.

‐NA‐ As per RFP



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485. 39.2 (b) RFP

hypothecation/pledge of goods/assets other than Project Assets and their related documents of title, arising or created in the ordinary course of business of the Airport, and as security only for indebtedness to the Senior Lenders under the Financing Agreements and/or for working capital arrangements for the Airport. The Senior Lenders would be entitled to create a lien on the

For the purpose of making the Project bankable, and to treat the Senior Lender as a secured creditor under the applicable law, the Concessionaire is required to create charges over the physical assets and tangible assets of the Concessionaire. Therefore, the Authority is requested to review the suggested changes in light of the applicable law. The applicable the applicable law.

hypothecation / mortgage/ or any other instrument as may be permitted under Applicable Laws / pledge of goods/assets other than Project Assets save and except (excluding Non‐ Aeronautical Assets including any commercial assets (created or to be created by the Concessionaires or its contractors, associates, or affiliates), financial assets such as receivables, insurance proceeds/ all rights under the Project Agreement/ leasehold rights Applicable Permits and authorization / security deposits etc.) and their related documents of title, arising or created in the ordinary course of business of the Airport, and as security only for indebtedness to the Senior Lenders under the Financing Agreements……..

As per RFP



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Escrow Account, subject to and without prejudice to the rights of the Authority under this Agreement;



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The Lenders’ Representative, on behalf of Senior Lenders, may exercise the right to substitute the Concessionaire pursuant to the agreement for substitution of the Concessionaire (“Substitution Agreement”) …

Please confirm that in case of refinance of debt, the substitution agreement shall not be re‐entered and benefits of substitution agreement shall be available to refinanced lenders. ‐NA‐ As per RFP



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The Concessionaire shall indemnify, defend, save and hold harmless the Authority and its officers, servants, agents, Government Instrumentalities, Designated GOI Agencies and Authority owned and/or controlled entities/enterprises, (the “Government Indemnified Persons”) against any and all suits, proceedings, actions, demands and claims

We suggest deletion of a particular portion as such entities are not related to this Agreement.

The Concessionaire shall indemnify, defend, save and hold harmless the Authority and its officers, servants, agents, Government Instrumentalities, Designated GOI Agencies and Authority owned and/or controlled entities/enterprises, (the “Government Indemnified Persons”) against any and all suits, proceedings, actions, demands and claims from third parties for any loss, damage, cost and expense of whatever …

As per RFP



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from third parties for any loss, damage, cost and expense of whatever …



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488 42.3 RFP

… Receiving a notice from the Authority along with necessary particulars thereof. For the avoidance of doubt…

The Concessionaire can be responsible for taxes which accrue after the Appointed Date.

… Receiving a notice from the Authority along with necessary particulars thereof, only where such charges arise after the Appointed Date. For the avoidance of doubt…

Accepted. Refer query 382



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489. 46.1 RFP

This Agreement shall be construed and interpreted in accordance with and governed by the laws of India, and the courts in Hyderabad and/or Vizianagaram shall have exclusive jurisdiction over matters arising out of or relating to this Agreement.

The suggested revision is requested.

This Agreement shall be construed and interpreted in accordance with and governed by the laws of India, and subject to the provisions of Article 43.3, the courts in Hyderabad and/or Vizianagaram shall have exclusive jurisdiction over matters arising out of or relating to this Agreement.

As per RFP



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491. 46.7 (b) RFP

(b) the Authority shall not be liable to the Concessionaire by reason of any review, comment, approval, observation or inspection referred to in Sub‐clause (a) above

We suggest deletion of this clause as the Concessionaire would be obligated to act according to the changes suggested by the Authority and in case any wrong suggestions are made, the Authority should be liable for the same.

(b) the Authority shall not be liable to the Concessionaire by reason of any review, comment, approval, observation or inspection referred to in Sub‐clause (a) ABOVE

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492 46.10A RFP New Provision

It may be appreciated that the concession agreement is generally executed for period of more than 20 years and the terms and conditions of such a long term commercial agreements may not be relevant all time during the concession period, therefore, provisions for amendments always stipulated in concession agreements with the intention to provide ability to amend or modify the agreed terms as may be necessary based on such circumstances which need protection of the project in the large interest. The Ministry of Finance, Government of India, published its committee report on Revisiting and Revitalizing Public Private Partnership Model in Infrastructure report in November 2015 (“DEA Nov. 2015 Report”). The Committee has carried out and in‐depth analysis and reviewed existing PPPs and made compelling recommendations for the next generation of PPP contracts to succeed in India to develop at a rate of growth that government along could not foster. In this report, recommendations and guidelines have been included to guide government departments, government authorities, and private sector partners to work together to structure these arrangements to fillip growth and development and the Committee has also suggested the method and mechanism for modification of executed PPP Contract.

Modification and Amendment a) At any time during the term of this Concession Agreement, upon request of the Authority or the Concessionaire, the Authority and the Concessionaire shall consult with each other to determine whether in light of relevant circumstances, provisions of this Concession Agreement need revision. Such revision shall ensure that this Concession Agreement operates equitably and without major detriment to the interest of any parties. In reaching agreement on any revision in accordance with this Clause 42.10 A the Parties shall ensure that no revision to this Concession Agreement shall prejudice the Concessionaire`s financial credibility or its ability to raise funds by borrowing or other means. Any consultation among the Parties pursuant to this Clause 42.10 A shall be carried out in a spirit of cooperation with due regard to the intent and objectives of this Concession Agreement. b) This Concession Agreement shall not be modified, amended or varied any manner

As per RFP



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unless such modification, amendment or variation is in writing and executed by the Parties and approved in accordance with all relevant rules and procedures/ guidelines issued by Government Instrumentality /ICAO relating to civil aviation sector including the modification of PPP Contract.



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493. Schedules RFP Please provide filled up schedules and annexures for review before the bid submission. ‐NA‐ Accepted

494 2.3.2, RFP

The Concessionaire shall at all times ensure to provide the

The Concessionaire shall at all times ensure to provide the As per RFP

495. Schedule U RFP

Designated GOI Agencies with (a) such access and facilities at the Airport, and (b) the space requirements, as may be required by any or all of them to perform the Reserved Services at the Airport.

Designated GOI Agencies with (a) such access and facilities at the Airport, and (b) the space requirements, as may be required by any or all of them to perform the Reserved Services at the Airport in accordance with the Concession Agreement.

As per RFP

497.

Annex I Schedule I

RFP

Taxis ‐ Maximum waiting time ‐ 95% of passengers wait less than 5 minutes

The maximum waiting time for taxis for 95% of passengers should be 10 minutes. ‐NA‐ Accepted



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498

Annex ‐ I (Schedule‐ I)

RFP

SERVICE QUALITY REQUIREMENTS Security check Immigration

For the purpose of 1. Security check; and 2. Immigration, performance measure should be limited only to availability of infrastructure for the same. Request for suitable modification.

‐NA‐ As per RFP

499.

Annex ‐ I (Schedule‐ I)

RFP

Service Quality Requirements Check‐in Maximum queuing time for Check‐in Self Service ‐ Business Class is 3 minutes.

We understand that the check – in self ‐service for Business and Economy class is same and thus the maximum queuing time for both categories should also be same. Please confirm. ‐NA‐ As per RFP



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501.

Schedule O, Clause 11.1

RFP

Governing law and jurisdiction This Agreement shall be construed and interpreted in accordance with and governed by the laws of India, and the courts in the State shall have jurisdiction over all matters arising out of or relating to this Agreement.

This jurisdiction of the courts would be subject to the arbitration clause.

Governing law and jurisdiction This Agreement shall be construed and interpreted in accordance with and governed by the laws of India, and subject to the provisions of clause 10 above, the courts in the State shall have jurisdiction over all matters arising out of or relating to this Agreement.

As per RFP



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502

Schedule R, Clause 1.1

RFP

“Financial Default” means occurrence of a material breach of the terms and conditions of the Financing Agreements or a continuous default in Debt Service by the Concessionaire for a minimum period of 3 (three) months;

a) Payment terms between the Lenders and Concessionaire may not be on monthly basis and may be fixed quarterly or half‐ yearly. Also, we suggest that this should only be defined as on Event of Default declared by the Lenders Representative

“Financial Default” means occurrence of a material breach of the terms and conditions of the Financing Agreements or a continuous default in Debt Service by the Concessionaire for a minimum period of 3 (three) payments months;

As per RFP



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503. Schedule S RFP

“Reserved Matters” means the matter(s) pertaining to any of the item below…… (d) to purchase/ buy‐back, the Concessionaire’s own shares or specified securities; (e) to issue sweat equity shares; (f) to issue further shares, with or without pre‐emptive rights to non‐members or to convert loans or debentures into shares; (g) to alter (increase or decrease) the share capital of

We request amendment of the list of reserved matter in accordance with our suggested changes.

“Reserved Matters” means the matter(s) pertaining to any of the item below…… (d) to purchase/ buy‐back, the Concessionaire’s own shares or specified securities; (e) to issue sweat equity shares; (f) to issue further shares, with or without pre‐emptive rights to non‐members or to convert loans or debentures into shares; (g) to alter (increase or decrease) the share capital of

As per RFP



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504 RFP

The Concessionaire; (m) to consent to a Director or his relative or partner or firm or private company holding an office or place of profit, except that of Managing Director, manager, banker, or trustee for debenture‐holders of the Concessionaire; … (q) to sign any contract or a binding document or instrument, which will have a financial impact of over 10% (ten

the Concessionaire; … (m) to consent to a Director or his relative or partner or firm or private company holding an office or place of profit, except that of Managing Director, manager, banker, or trustee for debenture‐holders of the Concessionaire; … (q) to sign any contract or a binding document or instrument, which will have a financial impact of over 10% (ten percent) of the Gross Revenue of the previous year; … (s) to make inter‐corporate‐ loans and investments or guarantee/security to be given, etc., if the aggregate amount thereof, exceeds the limit of 10% (ten percent) of the

As per RFP



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percent) of the Gross Revenue of the previous year; … (s) to make inter‐corporate‐ loans and investments or guarantee/security to be given, etc., if the aggregate amount thereof, exceeds the limit of 10% (ten percent) of the



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505. RFP

Concessionaire’s paid‐up share capital; … (x) any other matter which is required by the Companies Act, or any re‐enactment or amendment thereof, to be passed by a special resolution of the Shareholders of the Concessionaire;

Concessionaire’s paid‐up share capital; … (x) any other matter which is required by the Companies Act, or any re‐enactment or amendment thereof, to be passed by a special resolution of the Shareholders of the Concessionaire;

As per RFP

523. General RFP The Clause regarding Unforeseen Site Condition and the remedy available for the Concessionaire is missing.

Kindly add the same in the DCA. ‐NA‐ Not accepted.

534 4.1.2 (a) RFP

procured for the Concessionaire, the Right of Way to the Site in accordance with the provisions of Clause 10.3

Request Authority to specify timeline within which they will provide 100% Right of Way to the Concessionaire, which should be before Financial Close deadline. As per RFP



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536 9.1 RFP

The Concessionaire shall, for the performance of its obligations hereunder in respect of Phase I, provide to the Authority, no later than 60 (sixty) days from the date of this Agreement, an irrevocable and unconditional guarantee from a Bank for a sum equivalent to Rs. 108,00,00,000/‐ (Rupees one hundred and eighty crores only) in the form set forth in

Request you to reduce the performance security to the tune of ~2% of the Phase 1 project cost, which is ~Rs. 2718 crores. So, accordingly Performance security can be ~Rs. 50 crores. As per RFP



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Schedule F (“Performance Security”)


The Concessionaire shall provide separate Performance Securities prior to undertaking the development works for any of the subsequent Phases, for an amount equivalent to 2% (two percent) of the cost approved for such Phase by the Senior Lenders of each such Phase of the Project.

Request for deletion of this clause. As per RFP



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…conducted every quarter and shall ensure that the Airport achieves and maintains a rating of at least 4.5 (four point five) out of 5.0 (five) and / or shall appear within top 20 (twenty) percentile of all airports, in its category in the world…

Request you to kindly relax the requirements to as specified – rating of 4.0 out of 5.0 and within top 25 percentile.

…conducted every quarter and shall ensure that the Airport achieves and maintains a rating of at least 4.0 (four point five) out of 5.0 (five) and / or shall appear within top 25 (twenty) percentile of all airports, in its category in the world…

Accepted for Phase 1



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541. 24.4 RFP

Restrictions on City Side Development and Land Use: The Concessionaire shall procure that City Side Development and its land use shall at all times be in conformity with Applicable Laws and may include construction and operation of hotels, restaurants, convention centre, training centre, staff residence and hostels for employees working at the Airport, retail shops

Request Authority to revise this clause as this limits the commercial potential of the city side land, especially in an area like Bhogapuram, which will have lot of restrictions and limitations in terms of demand for land near airport. Putting additional restrictions will adversely impact the value of the land. Moreover, development of the area near airport will help the Authority in attracting more tourists/travelers to Bhogapuram.

The Concessionaire shall procure that City Side Development and its land use shall at all times be in conformity with Applicable Laws and may include construction and operation of hotels, restaurants, convention centre, training centre, staff residence and hostels for employees working at the Airport, retail shops for passengers and tourists, travel related offices and amenities or analogous uses, and shall not include commercial use not related to the Airport or passengers such as office complex, shopping mall, industrial park, or entertainment complex [; provided, however, that the area adjacent to the Airport, which has been earmarked as such in the Master Plan, may be

As per RFP



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for passengers and tourists, travel related offices and amenities or analogous uses, and shall not include commercial use not related to the Airport or passengers such as office complex, shopping mall, industrial park, or entertainment complex [; provided, however, that the area adjacent to the Airport, which has been earmarked as such in the Master



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Plan, may be developed and used independently of the Airport for construction of office complex, shopping mall, industrial park or entertainment complex in accordance with the Applicable Laws, and the provisions of this Agreement with respect to City Side Development shall apply mutatis mutandis to such area]



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547.

Article 1 – Definitions

Concession Agreement

Definition of “Change in Law” has not been provided. It is requested to kindly provide this definition As per RFP

548 Clause 3.1.1


Please specify the nature of technical specifications and standards required to be complied by Concessionaire for seeking extension of Concession Period.

The Concessionaire shall already be following and complying with the relevant and prevalent specifications and standards during the term of Concession. If the Authority is envisaging/contemplating to prescribe certain new specifications and standards, it is requested that the same may be specified at this stage itself.

As per RFP



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549. Clause 4.1.2


Authority has reserved a discretion of extending the period for the completion of its Conditions Precedent by 120 days, without payment of any damages. We request that the extension of 120 days should be available to the Authority only on payment of damages @0.3% of performance security for each day of delay.

As per RFP

553. Clause 4.1.3 (l)


The provision should be deleted as it is misplaced and not relevant.

Infusion of funds/equity is ideally covered in the Financing Documents and any condition related thereto are specified by the Lenders, and not by the Authority. Any infusion of equity in the Concessionaire cannot be made a CP and the Authority cannot prescribe terms and conditions relating to availing of debt.

Accepted

555. Clause 4.3.2 (b)


The Preferred Bidder is required to transfer its entire shareholding in the Concessionaire within 15 days of termination of Concession Agreement, at its own cost. Please clarify the meaning and intent of the words “at its own cost”. Further, the price at which such transfer of shareholding shall be made has not been provided. We request the Authority to specify the price of transfer of shareholding.

As per RFP



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559. Clause 9.4


It is requested that the Deemed Performance Security may be taken in the form of a Bank Guarantee in place of charge on the Escrow Account. As per RFP

560 Clause 10.2.5


This Clause should be deleted as it is the obligation of the Authority to provide Site free from any encumbrance and there should not be any Right of Way existing in favor of any person or body or agency, which may hamper the Concessionaire in carrying out its obligations under the Concession Agreement

Accepted

563. Clause 10.3.4


Please specify the quantum of damages payable by Authority for non-handing over of encumbrance free Site, as referred to under Clause 10.3.6. As per RFP



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564 Clause 10.3.6


The meaning and import of the following lines under Clause 10.3.6 may be explained: “For the avoidance of doubt, the Parties agree that any land required for City Side Development, in addition to the land included in Schedule-A, shall be acquired at the sole discretion of the Authority and the Concessionaire shall have no right or claim in the event the Authority declines any such acquisition in whole or in part.”

As per RFP



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567. Clause 12.2.6


The damages prescribed for default in meeting the timelines for submission of initial Master Plan should be removed

The damages are too stringent and shall cast an onerous impact on the Concessionaire, which is neither justified in equity nor in law. Further, the MCA for Greenfield Airport also does not prescribe any such provision.

As per RFP

568 Clause 12.4.5


It is submitted that in case of Arbitration under Clause 12.4, the Parties should bear their respective costs and the Concessionaire should not and cannot be obligated to reimburse the cost of Arbitrators to the Authority, as it against the principles of natural justice

As per RFP

569. Clause 12.8


It is requested to kindly specify the relevance of AMDC as its role seems to be overlapping with the role of Independent Engineer As per RFP



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571. Clause 12.9.2


There is a reference to Clause “O” in this Clause, which seems to be erroneous. It is requested to kindly provide the correct reference. Accepted

572 Clause 18.6.9


This Clause seems to be incomplete and certain words are missing. It is requested to kindly rectify the same As per RFP

573. Clause 24.4.1


It is requested to kindly clarify the meaning and intent of the proviso under Clause 24.4.1 As per RFP

581. General


There is reference to sub-lease at various places in the Concession Agreement, whereas there is no provision or concept under the Agreement. It is requested that the Authority should kindly remove this discrepancy As per RFP

594

Table 7.3 & 7.4, page no. 159-168

TEFR

Consideration for estimated cost towards ATC / ATM / CNS equipment are taken as 78.15 crore and 33.56 crore in Phase – I & II respectively whereas these pertains to reserved services and are generally not considered in the capex of Concessionaire. Please clarify.

As per RFP

595.

Para 7.5 / Table 7.4 page no. 161

TEFR Consideration for estimated cost towards catering building is also considered in the capex which has to be

executed by third party / JV. Therefore same should not be considered in the capex. As per RFP



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598

RPF –Vol -1 Cl No 1.2.7

RFP Authority is requested to increase the period after which the premium is paid to 25th Anniversary As per RFP

599.

RPF –Vol -1 Cl No 1.3

RFP Authority is requested to extend the Bid due date by at least 30 days Accepted and amendment issued.

604

RPF Vol -2, Clause 28.4:

RFP Concessionaire should be allowed to have a provision for special discounts under marketing head for promoting the airport as a base to airlines. There are precedents also for the same. It is important to proactively have these provisions which make the airport attractive to the users, that is, the airlines.

As per RFP



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605. What is the financial arrangement between the Concessionaire and the AAI (Airports Authority of India)? Is there any revenue sharing involved? As per RFP



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612 2.2.2

In case of a Consortium, the combined technical capacity and net worth of those Members who have and shall continue to have an equity shares of at least 26% (twenty six per cent) each in the SPV, should satisfy the above conditions of eligibility; provided that each such Member shall, for a period of 7 (seven) years from the date of commercial operation of the Project, hold equity share capital not less than 26% (twenty six per cent) of the subscribed and paid up equity of the SPV.

In case of a Consortium, the combined technical capacity and Net Worth of those Members, who shall have an equity share of at least 26% (twenty six per cent) each in the SPV, should satisfy the above conditions of eligibility; provided that each such Member shall, for a period of 5 (five) years from the date of commercial operation of the Project, hold equity share capital not less than26% (twenty six per cent) of the subscribed and paid up equity of the SPV.

As per RFP



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619. 2.2.3

O&M Experience: (a) In the event the Bidder is not a Consortium, it shall be eligible only if it has equivalent O&M experience of its own or enters into an agreement with having the O&M Experience as set out in Clause 2.2.3 (a), prior to COD, for performing the O&M obligations as per the terms and conditions set out in the Concession Agreement, for a period of not less than 7 (seven) years from the commercial operations of the Project, failing which the Concession Agreement shall be terminated. (c). In the event the Bidder does not have the relevant O&M Experience, it shall enter into an agreement with an entity having the O&M Experience as set out in Clause 2.2.3 (a), prior to COD, for performing the O&M obligations as per the terms and conditions set out in the Concession Agreement, for a period of not less than 7 (seven) years from the commercial operations of the Project, failing which the Concession Agreement shall be terminated.

O&M Experience: Clause has been repeated twice we request the authority to remove from once place and same clause should be applicable for single bidders and well as for consortium At present only two developers in India meet the O & M criteria laid down by Authority. Further, no foreign airport operator is interested to invest in an Indian airport with less than 10 Million passengers. Therefore, it is requested to modify this provision in accordance with the provision laid down in the Model RFQ document issue by Planning commission. In 2014, even AAI had adopted this provision for PPP of Kolkata airport.

As per RFP



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620 2.2.6 (c)

members of the Consortium shall nominate one member as the lead member (the “Lead Member”), who shall have an equity share holding of at least 26% (twenty six per cent) of the paid up and subscribed equity of the SPV and also holding the highest equity stake amongst all other consortium members. In the event of two or more consortium members holding the highest equal equity stake, the Bidding Consortium shall clearly indicate in the Bid which consortium member is to be considered the Lead Member and the consortium member so indicated or named shall be the Lead Member. The nomination(s) shall be supported by a Power of Attorney, as per the format at Appendix-III, signed by all the other members of the Consortium;

Request to amend this clause as per the standard planning commission Model RFQ documents as per below request; Members of the Consortium shall nominate one member as the lead member (the “Lead Member”), who shall have an equity share holding of at least 26% (twenty six per cent) of the paid up and subscribed equity of the SPV. The nomination(s) shall be supported by a Power of Attorney, as per the format at Appendix-III, signed by all the other members of the Consortium;

As per RFP



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621. 2.2.6 (g)

(iv) commit that each of the members, whose experience will be evaluated for Technical Capacity and Net Worth for the purposes of this RFP, shall subscribe to 26% (twenty six per cent) or more of the paid up and subscribed equity of the SPV and shall further commit that each such member shall, for a period of 7 (seven) years from the date of commercial operation of the Project, hold equity share capital not less than 26% (twenty six per cent) of the subscribed and paid up equity of the SPV;

Request to reduce lock in period for members from 7 years to 5 years and modify clauses as below;

As per RFP



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622

(iv) commit that each of the members of the consortium, whose experience will be evaluated for technical capacity and net worth for the purposes of this RFQ, shall subscribe to 26% (twenty six per cent) or more of the paid up and subscribed equity of the SPV and shall further commit that each such member shall, for a period of 5 (five) years from the date of commercial operation of the Project, hold equity share capital not less than: (i) 26% (twenty six per cent) of the subscribed and paid up equity share capital of the SPV; and (ii) 5% (five per cent) of the Total Project Cost specified in the Concession Agreement;

As per RFP



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623.

(v) Please delete this provision in view of our request made above in para 1.2.4 commit that the members of the Consortium, whose experience has been evaluated for technical capacity and net worth for the purposes of this RFP, shall collectively hold at least 51% (fifty one per cent) of the subscribed and paid up equity of the SPV at all times until the fifth anniversary of the commercial operation date of the Project;

As per RFP



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624

(vii) Commit that the O&M Member shall be part of the Consortium for a period of 5 (five) years from the date of commercial operation of the Project.

As per RFP

625.

(v) commit that the members of the Consortium, whose experience has been evaluated for technical capacity and net worth for the purposes of this RFP, shall collectively hold at least 51% (fifty one per cent) of the subscribed and paid up equity of the SPV at all times until the seventh anniversary of the commercial operation date of the Project;

As per RFP

626 (vii) Commit that the O&M Member shall be part of the Consortium for a period of 7 (seven) years from the date of commercial operation of the Project. As per RFP



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627. 2.4.1

By submitting the Bid, the Bidder acknowledges that it was pre-qualified and short- listed on the basis of Technical Capacity and Financial Capacity of those of its Consortium Members who shall, until the 7th (seventh) anniversary of the date of commercial operation of the Project, hold equity share capital representing not less than 26% (twenty six per cent) of the subscribed and paid-up equity of the Concessionaire. The Bidder further acknowledges and agrees that the aforesaid obligation shall be the minimum, and shall be in addition to such other obligations as may be contained in the Concession Agreement, and a breach hereof shall, notwithstanding anything to the contrary contained in the Concession Agreement, be deemed to be a breach of the Concession Agreement and dealt with as such thereunder. For the avoidance of doubt, the provisions of this Clause 2.4.1 shall apply only when the Bidder is a Consortium.

Request to amend this clause as per below request in line with standard planning commission Model RFQ documents. By submitting the Bid, the Bidder acknowledges that it was pre-qualified and short- listed on the basis of Technical Capacity and Financial Capacity of those of its Consortium Members who shall, until the 5th (fifth) anniversary of the date of commercial operation of the Project, hold equity share capital representing not less than 26% (twenty six per cent) of the subscribed and paid-up equity of the Concessionaire. The Bidder further acknowledges and agrees that the aforesaid obligation shall be the minimum, and shall be in addition to such other obligations as may be contained in the Concession Agreement, and a breach hereof shall, notwithstanding anything to the contrary contained in the Concession Agreement, be deemed to be a breach of the Concession Agreement and dealt with as such thereunder. For the avoidance of doubt, the provisions of this Clause 2.4.1 shall apply only when the Bidder is a Consortium.

As per RFP



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628 2.14.2

The Bidder shall prepare 1 (one) original set of the Technical Bid (together with documents required to be submitted along therewith pursuant to this RFP) and clearly marked “ORIGINAL”. In addition, the Bidder shall submit 1 (one) copy of the Technical Bid, along with documents required to be submitted along therewith pursuant to this RFP, marked “COPY”. The Bidder shall also provide 2 (two) compact discs (CDs) containing soft copies of the Technical Bid in either Microsoft Word or PDF formats. In the event of any discrepancy between the original and the copy, the original shall prevail.

The Bidder shall prepare 1 (one) original set of the Technical Bid (together with documents required to be submitted along therewith pursuant to this RFP) and clearly marked “ORIGINAL”. In addition, the Bidder shall submit 1 (one) copy of the Technical Bid, along with documents required to be submitted along therewith pursuant to this RFP, marked “COPY”. The Bidder shall also provide 2 (two) compact discs (CDs) containing soft copies of the Technical Bid in either Microsoft Word or PDF formats. In the event of any discrepancy between the original and the copy, the original shall prevail. Only scan document in pdf, or Jpeg format should be allowed as Word file can be editable which may be a controversial. Therefore, we request to remove the Microsoft word file option.

PDF accepted. Word doc would not be required



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631. 3.2.3

For a project to qualify as an Eligible Project under Categories 1 and 2: (a) The entity claiming experience should have taken overall responsibility for design, engineering, financing, risk management and construction of the Eligible Project. It should have been undertaken as a PPP project on DBFOT, BOT, BOLT, BOO, BOOT or other similar basis for providing its output or services to a public sector entity or for providing non-discriminatory access to users in pursuance of its charter, concession or contract, as the case may be. For the avoidance of doubt, a project which constitutes a natural monopoly such as an airport or port should normally be included in this category even if it is not based on a long-term agreement with a public entity;

For a project to qualify as an Eligible Project under Categories 1 and 2: (a) It should have been undertaken as a PPP project on DBFOT or BOT or BOLT or BOO or BOOT or other similar basis for providing its output or services to a public sector entity or for providing non-discriminatory access to users in pursuance of its charter, concession or contract, as the case may be. For the avoidance of doubt, a project which constitutes a natural monopoly such as an airport or port should normally be included in this category even if it is not based on a long-term agreement with a public entity;

Accepted



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633.

Provided that in case of real estate development, the following conditions shall apply: (i) the entity claiming experience should have taken overall responsibility for design, engineering, financing, risk management and construction of the Eligible Project; (ii) the entity claiming experience should have held, in the company owning the Eligible Project, a minimum of 26% (twenty six per cent) equity and should have been designated the lead member for such Eligible Project, from the date of signing of the concession agreement till date of commercial operations of the Eligible Project for which the Eligible Experience is claimed; (iii) the capital cost for the Eligible Projects with the minimum built-up area as set out in Clause 3.2.1 shall be deemed to be INR 270,00,00,000/- (Rupees Two hundred and seventy crores). For the avoidance of doubt, the deemed capital cost for Eligible Projects with a built-up area greater than the minimum areas specified in Clause 3.2.1 shall be calculated on a pro-rata basis; and (iv) The Eligible Project shall have been commissioned for use For example, a project having an estimated capital cost of INR 5,000,00,00,000/- (Rupees five thousand crores only) shall be eligible under this Clause 3.2.3 if (a) the total capital expenditure incurred is equal to or more than INR 270,00,00,000/- (Rupees two hundred and seventy crore only) ; and (b) such part of the project for which the capital expenditure is being claimed has been commissioned for use.

Please modify the clause 3.2.3 a & b as per standard planning commission document and remove the additional clause given for real estate projects.

As per RFP

634 3.2.4 For a project to qualify as an Eligible Project under Category 3 and 4 For a project to qualify as an Eligible Project under Categories 3 and 4,

As per RFP



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635. (b) the Bidder or its Associate claiming construction experience should have held more than 50% (fifty per cent) of the paid up and subscribed share capital of the company constructing the Eligible Project;

Please remove this clause because in case of EPC projects only minimum payment or receipt should be condition for eligibility of project not shareholding. Clause needs amendments as per the standard planning commission Model RFQ documents.

As per RFP



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636

Refer Instruction 3 of Annexure –III

Net Worth shall mean aggregate value of the paid-up share capital and all reserves created out of the profits and securities premium account, after deducting the aggregate value of the accumulated losses, deferred expenditure and miscellaneous expenditure not written off, as per the audited balance sheet, but does not include reserves created out of revaluation of assets, write back of depreciation and amalgamation.

Please amend this clause in accordance with the Model RFQ issue by Planning commission as per below request: Net Worth shall mean (Subscribed and Paid-up Equity + Reserves) less (Revaluation reserves + miscellaneous expenditure not written off + reserves not available for distribution to equity shareholders).

As per RFP



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638 Annexure-IV

Instructions: 10. For Categories 1 and 2, the date of commissioning of the project, upon completion, should be indicated. In case of Category 3 and 4, date of completion of construction should be indicated. In the case of projects under construction, the likely date of completion or commissioning, as the case may be, shall be indicated.

Kindly modify clause no 3.2.3 by allowing ongoing projects also to be considered for eligible projects as per request in query no. 13.

As per RFP

640 Annexure-IV Instruction 15:

Format of category 3&4

Format is not clear from the document uploaded it is merged with notes to the certificate. We request to provide the clear and proper format as per standard planning commissions Documents.

Accepted



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645. 3.1.1 (DCA)

For the avoidance of doubt, material breach shall for the purposes hereof mean Suspension or cumulative levy of Damages by the Authority exceeding a sum equivalent to 10% (ten per cent) of the Performance Security.

10% of the Performance Security is high; request you to consider if the per cent can be reduced to 5%

As per RFP



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647.

4.2 Damages for delay by the Concessionaire

In the event that (a) the Concessionaire does not procure fulfilment or waiver of any or all of the Conditions Precedent set forth in Clause 4.1.3 within the period specified in that Clause, and (b) the delay has not occurred as a result of failure to fulfil the obligations by the Authority under Clause 4.1.2 or other breach of this Agreement by the Authority or due to Force Majeure, the Concessionaire shall pay to the Authority, Damages in an amount calculated at the rate of 0.3% (zero point three percent) of the Performance Security for each day of delay until the fulfilment of such Conditions Precedent, subject to a maximum amount equal to the Bid Security, and upon reaching such maximum, the Authority may, in its sole discretion and subject to the provisions of Clause 9.2, terminate the Agreement. Provided that in the event of delay by the Authority in procuring fulfilment of the Conditions Precedent specified in Clause 4.1.2 having a direct impact on the fulfilment of any the Conditions Precedent to be fulfilled by the Concessionaire under Clause 4.1.3, no Damages shall be due or payable by the Concessionaire under this Clause 4.2 until the date on which the Authority shall have procured fulfilment of the Conditions Precedent specified in Clause 4.1.2. The payment of Damages pursuant to this Clause 4.2 is independent of the Concessionaire’s obligations under any other provision of this Agreement.

Kindly consider to amend the clause on Damages payable by the Concessionaire as: “…Concessionaire shall pay to the Authority Damages in an amount calculated at the rate of 0.1% (zero point one per cent) of the Performance Security for each day’s delay until the fulfilment of such Conditions Precedent, subject to a maximum amount equal to 10% (ten percent) of the Bid Security, and…”

As per RFP



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653. 12.2.6 DCA

If the Concessionaire does not submit the initial Master Plan to the Authority as per Clause 12.2.3, then, the Authority has the right to levy liquidated damages on the Concessionaire at the rate of Rs. 10, 00,000/- (Rupees Ten Lakh) for every day of delay, provided however that, the Concessionaire’s total liability in such case shall not exceed Rs. 5, 00, 00,000 (Rupees Five Crore).

Request if this clause can be deleted. In the alternative, the amount of damages should be brought down significantly. The Master Plan has to be given, this clause has to be construed that it is bound to be given however liquidated damages should not apply.

As per RFP

655.

16.5 Reduction in Scope of the Project

16.5.1 If the Concessionaire shall have failed to complete any Construction Works on account of Force Majeure or for reasons attributable to the Authority, the Authority may, in its discretion, require the Concessionaire to pay 80% (eighty per cent) of the sum saved therefrom, and upon such payment to the Authority, the obligations of the Concessionaire in respect of such works shall be deemed to have been fulfilled.

Such clauses are more pertinent in an EPC contract and not a PPP. It is suggested to remove this clause.



Sr. No.

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663. General

The capital cost of providing Navigational aids has been included in the project cost. Since this expenditure is to be borne by AAI, this cost should be deleted from the projected project cost

As per RFP

669. Clause 1.1.4 of RFP

Estimated Project Cost

Since the project cost is too high, it is requested that VGF funding should be made available to the Concessionaire.

As per RFP

670 Clause 1.2.1 of RFP

Along with the Bid, the Bidder shall pay to the Authority a non-refundable sum of Rs.10, 00,000/-as the cost of the RFP process.

This cost is extremely high. The Authority is requested to charge a nominal processing of Rs 500,000/bidder.

As per RFP



Sr. No.

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671. Clause 1.2.5 of RFP

Bid Security The Bid Security is extremely high. Kindly reduce the same to Rs 3.5 Crore.

As per RFP

672

Second para of Clause 2.2.9 of RFP

… As used in this definition, the expression “control” means, with respect to a person which is a company or corporation, the ownership, directly or indirectly, of more than 50% (fifty per cent) of the voting shares of such person…

Considering that even a Person holding 26% of more in a company would be able to control the decision making process, kindly amend the provision as:

As per RFP



Sr. No.

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674 Definition in DCA

Debt Due

Kindly amend point (a) of the definition as: “the principal amount of the debt provided by the Senior Lenders under the Financing Agreements for financing the Total Project Cost (“principal”), but excluding any part of the principal that had fallen due for repayment 1 (one) year prior to the Transfer Date” Kindly amend point (b) (i) of the definition as: “any interest, fees or charges that had fallen due 6 (six) months prior to the Transfer Date”

As per RFP



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675. Clause 4.2 of DCA

Damages for delay by the Concessionaire

This is one sided Clause, as there is no counter Clause for delay Damages for the Authority. Kindly provide a counter Clause for Damages for Authority delaying the fulfillment of Conditions Precedent.

As per RFP



Sr. No.

Ref. Article



676

Clause 5.3.4 (b) and Clause 5.4 of DCA

Shareholding of Consortium Members

While Clause 2.2.6 (a) of RFP allows 6 Consortium Members, and 4 Consortium Members for equity stake, it may not be possible to have more than 2 Consortium Members considering the provisions of Clause 5.3.4 (b) and Clause 5.4 of DCA. Kindly clarify.

As per RFP



Sr. No.

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677. Clause 5.4.5 of DCA

The Authority will not provide any form of support or guarantee at any point during the Concession Period, for meeting any capital requirement of the Concessionaire, in its capacity as the shareholder of the Concessionaire or otherwise.

During the implementation of the Project, it could be possible that the Senior Lenders, while sanctioning any new loan that may be required during the execution of the Project, would seek promoter guarantee from the Concessionaire. Kindly clarify the Authority’s willingness to provide guarantee for such loan.

As per RFP



Sr. No.

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License Fee

It is felt extremely high. The Authority is already entitled for the revenue share, in addition to benefits to be accrued to it as a result of its 26% shareholding in the Concessionaire. Considering this, request the Authority should charge a token license fee of Rs 1/acre/annum. Kindly amend.

As per RFP


Revenue Share

This is a financial risk for the Concessionaire, and it will impact the financial viability adversely. Kindly reduce the ceiling of revenue share from current 30% to 10%.

As per RFP



Sr. No.

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682

Clause 33.6.2 (a) of DCA

Force Majeure Event

In such scenario the Authority should also extend the Concession Period. Kindly amend the Clause as: “before the COD of a Phase, the Construction Period for such Phase and Concession Period, shall be extended by a period equal in length to the duration for which such Force Majeure Event subsists”

As per RFP



Sr. No.

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683.

Clause 33.9.2 (a) and Clause 36.3.2 (a) of DCA

Termination Payment for Force Majeure Event

Upon Termination, in accordance with Clause 30.4.1 (b), only 90% of Debt Due excluding Subordinated Debt and Insurance Cover can be withdrawn from the Escrow Account. Kindly clarify on how Authority would pay in such scenario the Debt Due

As per RFP

684 Missing Clauses

Unforeseen Site Condition – Kindly provide the Clause related to Unforeseen Site Condition, and the remedy available for the Concessionaire.

Not accepted



Sr. No.

Ref. Article



685.

RFP, Clause 1.2.1, page 10

RFP Single-stage bidding process

We request authority to follow two stage bidding process 1st stage – Request for Qualification (RFQ) and after qualifying in the 1st stage Authority should call for Request for Proposal (RFP)

Not accepted

691. RFP

Request that the clause providing Authority with the discretion to determine what constitutes Gross Revenue be deleted.

As per RFP



Sr. No.

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694

RFP, Clause 1.3, Page13

RFP Schedule of bidding process

We request Authority to follow the 2 stage bidding process. 1st stage for RFQ and provide time till September 2016 for submission of Technical Qualification. After shortlisting of Technical Qualification, the Authority should start the RFP stage and provide bidder of atleast 7-8 months for submission of Financial Bid. Alternately, if the Authority continue to follow the Single stage bidding process, the present overall bid timelines of 4 months seems very challenging. We request for a period of 10 months for submitting the Bid.

Not accepted



Sr. No.

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695.

RFP, Clause 2.2.1 (e), Page 17

RFP Restriction of holding of schedule airlines, cargo airlines and or its Associate in the SPV

We would request that Clause 2.2.1 (e) of the RFP to be revised as follows: (i) shall not include any equity ownership of a scheduled airline and cargo airline exceeding 26% (twenty six per cent) of the total equity ownership of such SPV; and (ii) such scheduled airline and cargo airline shall not appoint any director or any Key Managerial Person in the board of directors of the Concessionaire.

Accepted



Sr. No.

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698

RFP Appendix 1, para 7 (e) page 53

RFP Declaration regarding the Restriction of holding of schedule airlines, cargo airlines and or its Associate in the SPV

Please refer the point number 5 above and request you to modify the declaration as under: I/We certify that the SPV to be formed under Clause 2.2.6 shall not include any equity ownership of a scheduled airline and cargo airline exceeding 26% (twenty six per cent) of the total equity ownership of such SPV as set out in Clause 2.2.1(e) and such scheduled airline and cargo airline shall not appoint any director or any Key Managerial Person in the board of directors of the Concessionaire.

Accepted



Sr. No.

Ref. Article



699.

DCA, Part I, Article 1, Page 20 Definition of Debt Due

Concessional Agreement

The Debt Due definition only refer to the “Total Project Cost”. It does not cover the Debt taken for future phases.

We request you modify the Debt Due definition to include the Debt raised for future phases.

As per RFP

700

DCA, Part I, Article 1, Page 21 Definition of Encumbrance


The definition excludes only existing utilities and not all utilities. However, if future utilities are not excluded as well, then water, electricity and other utilities under the asset may be treated as encumbrances.

Please exclude all utilities from the definition of “Encumbrance” and not just existing utilities.

As per RFP



Sr. No.

Ref. Article



703.

DCA, Part I, Article 1, Page 28


Project is defined to include “…. separately identified terminals for domestic passengers and international passengers ….” This definition could be interpreted to exclude the option of developing an integrated domestic and international terminal which is preferable from an infrastructure efficiency perspective and provision of a more seamless transfer passenger product.

We suggest deletion of “with separately identified terminals for domestic passengers and international passengers” from the definition of the Project. The current definition of the Project implies that separate domestic and international passenger terminals are required.

Accepted

704

DCA, Part I, Article 1, Page 30 Definition of Subordinated Debt


‘Subordinate Debt’ has been defined to mean the aggregate of principle amount of debt provided by lenders/ Concessionaire’s shareholders plus all accrued interest on such debt, but restricted to less of actual interest rate and a rate equal to 5% above the bank rate (for loans expressed in Indian rupees) and lesser of the actual interest rate and 6 months LIBOR plus 2% in case of loans expressed in foreign currency, but does not include any interest that had fallen due 1 year prior to the Transfer Date.

Request for deletion for any ceilings to the interest rate as the same is likely to result in limitation by AERA towards tariff calculations.

As per RFP



Sr. No.

Ref. Article



705.

New Clause Exemption of service tax and soil royalty for the Project.


In order to promote the financial viability of the Project, we would request the grant of an exemption on all service tax on the Project or activities relating thereto for Phase 1 and Phase 2 of the Project. We would also request a full waiver on all soil royalty in relation to the Project.

As per RFP.

708

DCA, Part II, Article 3, Para 3.1.1, Page 38


The clause provides that extension of the Concession Period would always be subject to approval of the Authority. This would essentially imply that the concession is for a 30 year period, only, as the extension is always subject to approval of the authority, even if the conditions for extension are met by the Concessionaire.

Please delete the following sentence: As per RFP

709. Further, for the extension of the Concession tenure Authority will provide a list of technical specifications and standards which Concessionaire has to accept. The condition is very open ended.

“In any event, at all times, any decision concerning the extension of the Concession Period will vest with the Authority.”

As per RFP



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712

Additionally we also request Authority to specify the Technical specifications and Standards which will be applicable while seeking the extension of Concession tenure.

As per RFP

713.

DCA, Part II, Article 3, Paragraph 3.1.2(g), Page 39


The clause prohibits the Concessionaire from assigning, transferring or creating any lien or encumbrance on the Agreement or the Concessionaire or on the whole or any part of the Airport, or transferring, leasing or parting with possession of the whole or any part of the Airport, except as specifically permitted under the Concession Agreement.

We request that Clause 3.1.2(g) should be reworded to remove the reference to ‘transfer, lease or part possession of the whole or any part of the Airport.’

As per RFP

714 The reference to ‘lease or part with possession of the whole or any part of the Airport’ creates a situation where any activity which is not specifically mentioned in the Concession Agreement as being permissible for lease may be barred from leasing.

As per RFP

715.

DCA, Part II, Article 4, Para 4.1.2 (c)(iv) and


The rights flowing from the CNS-ATM Agreement and more particularly the MoU with the GoI are very important in the overall scheme of rights of the Concessionaire under the Concession Agreement, the bidder would require full certainty on this document prior to submission of the financial bid.

Authority to confirm that these agreements are approved by AAI and GoI.

As per RFP



Sr. No.

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716

4.1.2 (c)(v), Page 40

The bidder will need certainty on these documents prior to the bid, failing which any subsequent change should allow the bidder to withdraw, with return of the Bid Security/Performance Security, as well as reimbursement by Authority of the bidding costs.

As per RFP

723.



The clause places an obligation on the Concessionaire to ensure that the drafts of the Project Agreements, or any amendments or replacements are submitted to the Authority, for its review or comments. The authority may choose to provide its comments within a period of 15 days of such submission.

We would request that following proviso be added after Clause 5.2.3: “Provided that the aforementioned requirement of submission of drafts of the Project Agreements, amendments or replacements shall not be required in case the financial liability or obligation placed by such Project Agreements, amendments or replacements on the Authority does not exceed 5% of the Total Project Cost.”

As per RFP



Sr. No.

Ref. Article



724

DCA, Part II, Article 5, Para

Concessional Agre

The Clause provides that any addition, replacement or amendment to any Financing Agreements would require prior approval of Authority, if such addition, replacement or amendment would have the effect of imposing or increase any financial liability or obligation on the Authority.

We would request that Clause 5.2.3 be modified as under: As per RFP



Sr. No.

Ref. Article



725.

5.2.3, Page 46

ement

Given the phase-wise development, the Concessionaire would substantially alter its financing position at each phase of development. It would significantly delay and impede the process of raising financing if such phase wise financing requires approvals at each stage.

“The Concessionaire shall not make any addition, replacement or amendment to any of the Financing Agreements without the prior written consent of the Authority if such addition, replacement or amendment has, or may have, the effect of materially, increasing or imposing, any financial liability or obligation on the Authority. For the purposes of this Clause 5.2.3, ‘materially’ shall be construed as any increase or imposition in excess of 5% of the current outstanding indebtedness of the Concessionaire. The Authority acknowledges and agrees that it shall not unreasonably withhold its consent in terms of this Clause 5.2.3for restructuring or rescheduling of the Debt of the Concessionaire. It is clarified for abundant caution that any fresh debt under a new Financing Agreement shall not be construed as an addition, replacement or amendment for the purposes of this Clause 5.2.3.”

As per RFP



Sr. No.

Ref. Article



726 Further, with the development of the project, certain amendments and modifications are typically periodically made to the Financing Agreements. It is suggested that only changes that have a material bearing on the financial liability or obligation of the Authority should require prior consent of the Authority.

As per RFP



Sr. No.

Ref. Article



727.



Prior approval for all contractors from Authority and GoI without any specified time limit and compensation mechanism in case of any delays

It is requested that Clause 5.2.6 be amended to include the following language at the end of Clause 5.2.6: “In the event the Authority or the Designated GOI Entity does not approve or reject the proposal within 30 (thirty) days of the date on which the required information has been provided, it shall be deemed that the Authority and the Designated GOI Entity has approved such EPC or O&M Contract from a national security and public interest perspective.”

As per RFP



Sr. No.

Ref. Article



728

DCA, Part II, Article 5, Para 5.3, Page 48


This Clause is broader than the one provided in the RFP and needs to be aligned with the RFP. As such, this Clause contains the following restrictions on Change in Shareholding which are not provided in the RFP: (i) Any transfer of more than 25% of the shareholding in the Concessionaire requiring Authority’s approval from national security and public interest perspective;

Please align Clause 5.3 with the shareholding requirements as given in the RFP so as to maintain uniformity throughout the documentation. Additionally, we request to modify the Clause 5.3.4 (c) as under shall be modified in accordance with our RFP comment 5 related to clause 2.2.1 (e) of the RFP. The modified clause is as under: Clause 5.3.4 (c) at no time during the Concession Period: (i) any schedule airlines and cargo airlines and/or their respective group entities, directly or indirectly, individually or collectively, hold more than 26% (twenty six percent) of subscribed and paid up Equity of the Concessionaire; (ii) irrespective of any shareholding in the Concessionaire by a scheduled airlines and cargo airlines and their group entities, directly or indirectly, any such entity shall not have any right to appoint any Director on the Board of Directors of Concessionaire or any Key Managerial Personnel;

Accepted



Sr. No.

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734

(v) In the view of the Bidder, the Authority should contribute 26% of the actual equity base of the Concessionaire without capping it. In the event that the Authority intends to cap its investment please confirm that the Authority’s Share would stand diluted in case of investment beyond the said limit. We would draw your attention to the fact that in case of the Mumbai and Delhi airports there is no cap on AAI’s contribution towards equity and AAI would stand diluted in case of a failure to subscribe to equity in the Airport Company.

Not accepted.



Sr. No.

Ref. Article



737.



Obligations related to Procurement of Goods and Services: The present provision requires all procurement for goods and services for a value in excess of Rs. 25 crore to be undertaken through a competitive bidding process.

Accordingly, we would request that the requirement of competitive bidding process under Clause 5.6.2 be deleted.

As per RFP

738

We note that given that the overall liabilities and obligations for completion of the airport and maintaining the technical standards of the Airport lie with the Concessionaire, it is extremely onerous for the Concessionaire to necessarily make all procurements of goods and services subject to competitive bidding without any regard or weightage to quality and/or timing.

This would not have any adverse impact on the Authority’s rights as the contracts under Clause 5.6.2 are in any event only expenditure contracts and have no impact on the Gross Revenue of the Concessionaire.

As per RFP



Sr. No.

Ref. Article



739. Further, particularly in the context of the Phase 1 construction, given the extremely tight timelines for completion, it would be extremely onerous to complete undertake each procurement of goods and services by a competitive bidding process.

In the event that the foregoing is not acceptable, we would request: (i) That the limit be increased from 25 crore to Rs. 100 crore; and (ii) Inclusion of the following proviso in Clause 5.6.2: “Provided that nothing contained herein shall apply to any procurement of goods or services for Phase 1 of the Project.”

As per RFP



Sr. No.

Ref. Article



740



Transactions with related parties: In addition to the probity and other conditions stipulated in Clause 5.6.3, Clause 5.6.2 requires all related party transactions to be approved by the Authority.

Approval of every transaction (for example, in the nature of consulting services, management services, TSA, etc.), even where entered into on an arms-length basis would result in operational challenges. Request the deletion of the Authority’s right to approve all transactions with Related Parties. The monitoring covenants under Clause 5.6.3 would in any event adequately protect the interest of the Authority.

As per RFP



Sr. No.

Ref. Article



741.



The Clause restricts the Concessionaire from having any shareholding interest in any other entity for the purpose of any business arrangement. The Concessionaire should be allowed to create subsidiaries / Joint Ventures for carrying out businesses at the airport, such as for duty free / fuel facility / cargo facility / ground handling, city side development etc. This is fairly typical and enables the Concessionaire to have a greater degree of operational involvement with service providers at the Airport.

Please delete Clause 5.15. In the alternate, please insert the following proviso at the end of Clause 5.15: “Provided that nothing contained herein shall prohibit the Concessionaire from incorporating one or more subsidiaries or investing in one or more joint ventures, providing any Aeronautical, Non-Aeronautical Services or city side development at the Airport.”

As per RFP



Sr. No.

Ref. Article



744



The Clause provides that any addition, replacement or amendment to any Financing Agreements would require prior approval of Authority, if such addition, replacement or amendment would have the effect of imposing or increase any financial liability or obligation on the Authority.

Request that the prior consent / approval of the Authority not be mandatory in case the refinancing does not result in an increase in the principal amount / rate of interest and also for potential refinancing of debt at time of construction of subsequent phases to achieve optimal overall leverage.

As per RFP

745. Given the future development, the Concessionaire would substantially alter its financing position at each phase of development. It would significantly delay and impede the process of raising financing if such phase wise financing requires approvals at each stage.

Further, please clarify that no approval would be required in case refinancing is done at the time of construction financing for subsequent phases.

As per RFP



Sr. No.

Ref. Article



746 Further, with the development of the project, certain amendments and modifications are typically periodically made to the Financing Agreements. It is suggested that only changes that have a material bearing on the financial liability or obligation of the Authority should require prior consent of the Authority.

As per RFP



Sr. No.

Ref. Article



748



Representations and warranties of the Authority

We request that following representations and warranties be additionally included: The Authority represents and warrants to the Concessionaire that: (i) It has procured all the Applicable Permits as may be required for commencement and undertaking pre-construction Works, or if subject to conditions, then all such conditions required to be fulfilled by the date specified therein have been duly satisfied in full, and such Applicable Permits are in full force and effect; and (ii) No representation or warranty by it contained herein or in any other document furnished by it in relation to Applicable Permits contains or will contain any untrue or misleading statements of material fact or omits or will omit to state a material fact necessary to make such representation or warranty not misleading.

As per RFP



Sr. No.

Ref. Article



749.

DCA, Part III, Article 9, Para 9.1, Page 60


The Clause requires the Performance Security to be in full force and effect till the expiry of 7 years after Project COD. It will not be possible to procure a bank guarantee with such a long term. Typically, and consistent with industry practice, a 1 year revolving bank guarantee should be provided. Further, a period of 7 years after COD is extremely excessive and not in sync with market practice particularly as this implies a total of a 10 year bank guarantee per Phase.

Please modify Clause 9.1 to provide that the Performance Security should be a revolving bank guarantee having a validity of 1 year and which would be maintained till the 7 years after the COD of each Phase. We would request that the tenor of the Performance Security be reduced to 2 years after COD.

As per RFP



Sr. No.

Ref. Article



750



Reinstatement of Performance Security amount: The Concessionaire is required to reinstatement the Performance Security within 15 days of the each invocation. This results in the liability in respect of the Performance Security being uncapped and open ended, which places in the Concessionaire in an extremely onerous position.

We would request deletion of the requirement of reinstatement under Clause 9.2. In the alternate, please consider the following modification of Clause 9.2: “Upon occurrence of a Concessionaire’s Default or failure to meet any Condition Precedent, the Authority shall without prejudice to its other rights and remedies hereunder or any Applicable Law, be entitled to encash and appropriate from the Performance Security the amounts due to it for and in respect of such Concessionaire’s Default or the failure to meet any Condition Precedent. Upon such encashment and appropriation from the Bid Security or Performance Security as applicable, the Concessionaire shall within 15 days thereof replenish in case of partial appropriation to its original level and in case of appropriation of the entire Bid Security or performance security provide a fresh performance security, failing which the Authority shall be entitled terminate this Agreement in accordance with Article 34. Provided that nothing contained herein shall require the Concessionaire to replenish (in the aggregate in respect of all instances of encashment) the

As per RFP



Sr. No.

Ref. Article



Performance Security more than twice (i.e. in aggregate up to a maximum amount of three hundred crores), where after the Concessionaire shall not be obliged to replenish the Performance Security. ”



Sr. No.

Ref. Article



751.



Deemed Performance Security: Please note that given the several restrictions on charge creation in the Concession Agreement, the cash flows of the Concessionaire would be the primary security to the Lenders. This cannot again be subject to a charge to Authority for the Deemed Performance Security, particularly after the Performance Security has been returned.

We would request deletion of Clauses 9.4 and 9.5 dealing with Deemed Performance Security.

As per RFP



Sr. No.

Ref. Article



754

DCA, Part III, Article 10, Paragraph 10.2.7, Page 63


The clause provides that the license to the Site shall terminate automatically upon termination of the Concession Agreement, irrespective of any temporary or permanent structures erected on the Site by the Concessionaire/ sub-licensees. The termination of the license should be subject to necessary termination payments by the Authority to the Concessionaire.

Please modify Clause 10.2.7 as under: “The license granted hereunder shall terminate automatically and forthwith, without the need for any action to be taken by the Authority to terminate the license, upon the Termination of this Agreement for any reason whatsoever, and payment of Termination Payment in accordance with this Agreement.”

As per RFP



Sr. No.

Ref. Article



755.

DCA, Part III, Article 10, Para 10.2.8, Page 63


The article requires that Authority be appointed as the Concessionaire’s true and lawful attorney to execute and sign in the name of the Concessionaire a transfer or surrender of license at any time after the Concession Period has expired or has been terminated earlier

Please deleted Article 10.2.8, as Article 10.2.7 provides for the mechanism for termination of license upon Termination of the Concession Agreement. The word Termination has been defined to include ‘expiry’ and 'termination’ of the Concession Agreement.

As per RFP



Sr. No.

Ref. Article



760



The said provision requires that the Master Plan be developed in consultation with all major stakeholders in accordance with the terms of Applicable Laws and in this Agreement.

Please confirm that the relevant stakeholders to be consulted under clause 12.2.2 is strictly limited to those required by Applicable Laws.

As per RFP



Sr. No.

Ref. Article



762



The provision currently reads as under: “The Concessionaire may, with prior written consent of the Authority, use any area earmarked for future expansion of the Airport, for other purposes incidental to or associated with the Airport, until the same is required for the expansion specified in the Master Plan, subject to the condition that only temporary structure may be constructed in such area and the use thereof shall be at all times be in conformity with Applicable Laws, Applicable Permits and Good Industry Practice.” Given that the Master Plan with phasing would be approved by the Authority, there does not seem to be any rationale in requiring Authority approval for temporary diversion of land use. Further, several assets may not be capable of being developed in ‘temporary structures’ but instead would be permanent structures that would be dismantled at the appropriate time.

Request that the provision be reworded as under: “The Concessionaire may, with prior written consent of the Authority, use any area earmarked for future expansion of the Airport, for other purposes incidental to or associated with the Airport, until the same is required for the expansion specified in the Master Plan, subject to the condition that only temporary structure may be constructed in such area and the use thereof shall be at all times be in conformity with Applicable Laws, Applicable Permits and Good Industry Practice.”

As per RFP



Sr. No.

Ref. Article



763.



The Concessionaire is, prior to commencement of construction of the terminal building, required to submit to the Authority and the Independent Engineer, the architectural parameters, controls, building profiles, facades, dimensions, designs, building materials, specifications, bill of quantities and cost estimates, for comments and observations prior to submission for any approvals.

Given the tight timelines for receipt of approvals and completion of work as well as the nature of the concession, the Concessionaire requests for deletion of these requirements as this is fairly excessive involvement of the Authority in the construction / development works.

As per RFP



Sr. No.

Ref. Article



764

DCA, Part III, Article 12, Para 12.5.2, Page 73; DCA Part II, Article 13, Para 13.4, Page 77 DCA, Part V, Article 34, Paragraph 36..1.1(c), Page 145


Phase Completion Schedule for Phase I: the Concession Agreement stipulates minimum percentages of the TPC within identified time periods towards Phase I completion. This is typically a requirement under EPC contracts and it is not usual for a concession grantor to monitor development speed through the percentage of TPC expended. In particular, this places restrictions on the nature of contracting that the Concessionaire can undertake – for instance, significant payments to the EPC contractor at completion would result in Concessionaire default under Clause 12.5.2. Monitoring each stage of completion, when the overall liability of the Airport lies with the Concessionaire would simply be a case of micro-management and would not add any value to the overall development and instead only place constraints on the development cycle.

We would request deletion of Clause 12.5.2. As a sequitur, since Clause 13.4 flows from Clause 12.5.2, we would request deletion of Clause 13.4 As a sequitur, since Clause 34.1.1(c) flows from Clause 12.5.2, we would request deletion of Clause 36.1.1©

As per RFP



Sr. No.

Ref. Article



766



The clause provides that the area earmarked for MRO Facilities in the master Plan may be used for any other facility until any inquiry comes and the Concessionaire enters into an arrangement with a third party (or the Concessionaire himself) decides for developing and operating the MRO Facilities.

In the event the MRO Facilities are developed and operated by a third party, please clarify the manner in which such arrangements shall be treated upon termination of the Concession Agreement. The Concession Agreement at present is silent about the manner in which such arrangements shall be treated. Further, in the event that the Concessionaire is unable to develop / cause to develop MRO on commercially viable terms within an agreed period from the date of the Agreement, the area earmarked for MRO may be diverted for other commercial activities.

As per RFP



Sr. No.

Ref. Article



767.



The clause provides that all items in the Punch List shall be completed by the Concessionaire before the Scheduled Completion Date and for any delay the Authority shall be entitled to recover Damages from to be calculated for each day of delay until all items are completed, at the lower of: (a) 0.1% of the Performance Security, and (b) 0.2% of the cost of completing such items as estimated by the Independent Engineer. The Concessionaire shall be entitled to a further period not exceeding 120 days for completion of the Punch List items. The clause further provides that if completion of any item is delayed for reasons solely attributable to the Authority or due to Force Majeure, the completion date shall be determined by the Independent Engineer in accordance with Good Industry Practice.

Please note that in the event there is any delay for reasons attributable to Authority, the determination of extension to completion date should not be on the basis of Good Industrial Practices and instead there should be ‘deemed completion’.

As per RFP



Sr. No.

Ref. Article



768



The Clause does not amply clarify that in case of a failure of any Designated GOI Entity to provide a Reserved Service required for COD, the Concessionaire may declare COD without satisfying the conditions in Clause 14.

We would request clarification that in the event that COD cannot be demonstrated on account of any unavailability of Reserved Services, the period available for achieving COD shall stand extended by the duration for which the Reserved Services are not made available. Further, we would also request that the term of the concession should also be extended and payment of concession fee to be stopped for the duration for which the Reserved Services are not made available.

As per RFP



Sr. No.

Ref. Article



769.



The clause provides that if Phase I COD does not occur prior to 91st day after the Scheduled Completion Date, unless the delay is on account of reasons attributable to the Authority or due to Force Majeure, the Concessionaire shall pay Damages to the Authority in a sum calculated at the rate of 0.1% of the amount of Performance Security for delay of each day until Phase I COD is achieved.

Please note that a reciprocal obligation on the Authority to make payment of damages for any delay in achieving Phase I COD after the Scheduled Completion Date for reasons attributable to Authority should be included in the Concession Agreement. Further, the obligation of the Concessionaire to pay Concession Fee should stand suspended during any period of breach or delay in performance of obligations by the Authority.

As per RFP



Sr. No.

Ref. Article



771.



The clause states that the Authority has the right to, after giving notice to the Concessionaire and considering its reply, award any works or services forming part of the Change of Scope to any person on the basis of open competitive bidding.

Please note that a third party cannot be brought in along with the Concessionaire to undertake the additional Scope of Work. We request the deletion of the clause.

As per RFP

773.

DCA, Part III, Article 17, Paragraph 17.4, Page 87


The clause provides that in case of existence of an Emergency which warrants de-commissioning and closure of the whole or any part of the Airport, the Concessionaire shall, at the advice of Authority be entitled to de-commission and close the whole or any part of the Airport to Users for so long as such Emergency and the consequences thereof warrant, provided that such de-commissioning and particulars thereof shall be notified by the Concessionaire to the Authority without any delay. The clause further provides that no claim or compensation shall be due and payable to the Concessionaire on account of decommissioning or restricted use of the Airport during an Emergency or due to reasons of national security and public interest.

Please note that the Concessionaire should have a right to seek compensation for all disruptions. We would request Clause 17.4 to be modified accordingly.

As per RFP



Sr. No.

Ref. Article



774



The clause state that the Concessionaire shall not close any section of the Airport for undertaking routine and preventive maintenance or repair works, except with the prior written approval of the Authority.

The clause is extremely onerous as the consent cannot be obtained from the Authority for very routine and preventive maintenance to be undertaken by the Concessionaire. We request you to kindly delete the requirement.

As per RFP

775.

DCA, Part III, Article 17, Paragraph 17.10, Page 89


The Authority is required to ensure that during the Operation Period, no barriers or obstructions are erected or placed by any Government Instrumentality on the Airport except for reasons of Emergency, national security, or law and order. The clause however, does not provide for a mechanism for compensation in case of placement of such obstructions, barriers or erections.

Any costs incurred should be to the account of the Authority. We request you to kindly clarify the same in the provision.

As per RFP



Sr. No.

Ref. Article



776



The clause requires the Concessionaire to ensure that the Defence Forces, at all times, have the right to use the Airport without any restrictions or constraint of any nature whatsoever.

Please note that an open ended guarantee of availability of facilities to the Defence Forces cannot be extended. We would request that specific slots intended to be utilized should be specified. Diversion of the airport from non-commercial uses would have a significant impact on the overall revenue stream. If the Authority does not currently have the ability to provide specific utilization requirements for Defence, it is suggested that a mechanism for adjustment of Concession Fee and Revenue Share be included in case of use by Defence forces. In any event, the Concessionaire should have the flexibility to propose an alternative location for Defence area.

As per RFP



Sr. No.

Ref. Article



777.



The clause requires the Concessionaire to provide free of cost, parking bays for 2 aircrafts and space for hangers for the aircrafts of the Authority or its nominees in the Airport. The Concessionaire is further required to cooperate and assist the Authority/ its nominee in the movement of their aircraft at the Airport and facilitate the use of the Airport, on priority basis.

Such a right cannot be extended on priority basis. Furthermore, such a right can be exclusive offered to the Authority on non-transferable basis. We request authority to modify the clause accordingly.

As per RFP



Sr. No.

Ref. Article



779.



The clause restricts the Concessionaire from assigning, or in any manner creating encumbrance on any part of the Cargo Facilities.

Please note that the lenders to the project would require that a charge be created on the Cargo Facilities as a part of the security package. Cargo Facilities have been defined to mean building, structures and equipment and docking space and parking, as maybe required for handling of incoming and outgoing cargo (including short term warehousing). We therefore request that the restriction be removed. In this regard please also see our comment at point 85 with regards to permitted assignment and charges.

As per RFP



Sr. No.

Ref. Article



780



The clause provides that the Concessionaire may utilize the Terminal Building for commercial purposes, such as travel facilities, amenities for Users, restaurants, accommodation and retail. Further any such commercial activities outside the Terminal Building should not be treated as Non-Aeronautical Services for the purposes of Shared Till, in order to place the Airport on par with other airports.

We would request that no specific limitations or restrictions be placed on the nature of activities that could be undertaken at the Terminal Building, the Cargo complex or associated with other developments at the Airport, such as the car park facilities etc. We suggest that the provisions be modified as under: “Subject to the provisions of this Agreement and Applicable Laws, the Concessionaire may utilize the Terminal Building, the Cargo Facilities or other parts of the Airport or the Site for commercial purposes, including without limitation for travel facilities, amenities for Users, restaurants, accommodation, offices and retail facilities. The revenues from City Side development for commercial purposes shall not be considered for cross-subsidization under the Shared Till.”

As per RFP



Sr. No.

Ref. Article



782



The clause provides that the Authority may from time to time require the Concessionaire to enter into bilateral agreements with any or all of the Designated GOI Agencies for the performance of Reserved Services.

We request that the clause be deleted. As per RFP

784

DCA, Part IV, Article 25, Para 25.1.1, Page 118


Financial Close The clause provides for payment of damages by the Concessionaire, in addition to those payable under Clause 4.2 pertaining to conditions precedent, for any delay in achieving financial close.

Please note that two separate modes of calculation and payment of damages has been prescribed Clauses 25.1.1 and 4.2 for the same default. We would request that the requirement under Clause 4.2 be deleted in light of the same.

As per RFP

788

DCA, Part IV, Article 28, Para 28.3.7, Page 123


The clause provides that the Concessionaire shall have no recourse whatsoever against the Authority in respect of any aspects concerning the determination, levy, recovery (including under or over recovery) or appropriation of Aeronautical Charges.

The requirement under this clause is extremely onerous. We therefore seek the deletion of the same.

As per RFP



Sr. No.

Ref. Article



789.

DCA, Part IV, Article 28, Para 28.5.2 and 28.6, Page 124


Clause 28.5.2 provides that any additional costs or reduction arising out of change in scope, change in specifications and standards, security requirement or compliance with new international obligations having the force of law maybe be reviewed by AERA, for the purposes of revision of aeronautical charges. Clause 28.6 provides that in case additional capital costs are to be incurred for the purposes Clause 28.5.2, the Concessionaire shall be required to submit the specifications and costs in respect thereof to AERA, and AERA shall determine the capital costs required to be incurred. The Concessionaire shall be required to complete such additional works, and upon such completion the capital costs can be recovered by the Concessionaire in accordance with applicable laws and the terms of the Concession Agreement, including the applicable tariff guidelines.

Please note that the capital costs to be incurred will be required to be determined in consultation with Concessionaire. Further, a clear clause should be included to provide that the capital costs arising out of change in scope, change in specifications and standards, security requirement or compliance with new international obligations having the force of law would need to be adjusted in the aeronautical charges to ensure that the Concessionaire is sufficiently compensated.

As per RFP



Sr. No.

Ref. Article



791.

DCA, Part IV, Article 30, Para 30.4.1, Page 128; Escrow Agreement, Para 4.2, Page 219.


We would request that 100% of Debt Due should be covered in priority to all other expenses.

As per RFP

793.

DCA, Part V, Article 33, Paragraph 33.9, Page 138


If the Concession Agreement is terminated on account of a Non-Political Event, the Authority shall make a Termination Payment of only 90% of the Debt Due less Insurance Cover. Further, the Concessionaire shall not receive any payment towards Adjusted Equity or the remaining 10% of Debt Due.

We would request a clarification: That termination payment would cover 100% of the Debt Due and not 90%; and

As per RFP



Sr. No.

Ref. Article



794

DCA, Part V, Article 34, Para 34.3, Page 141


The clause provides that in the event that a material breach or default of the Concession Agreement causes delay in achieving COD of any phase or leads to suspension, the Authority may consider extending the concession period in lieu of the payment of compensation under Clause 32.2 (which pertains to compensation for default by the Authority). The period of such extension in the Concession Period shall be considered and determined by Authority at such time.

Please note that in the event of any material breach or default of the Concession Agreement by the Authority, which causes delay in achieving COD of any phase or leads to suspension, the Concession Period should be necessarily extended by proportionate number of days. This right of extension should not be extended to the Concessionaire at the option of the Authority. We request that the clause be modified to reflect the same. Further, a clause should be included to state that, in any event, the Authority shall bear incremental costs incurred by the Concessionaire due to delay in achieving COD in aforementioned circumstances.

As per RFP



Sr. No.

Ref. Article



795.



If the Authority rectifies or removes the cause of suspension within a period not exceeding 90 days, it shall revoke the suspension and restore all rights of Concessionaire.

The clause does not clarify the consequences of rectification post the 90 day period. Given that the suspension could be for upto 270 days, the possibility of rectification after 90 days would also need to be addressed. Please provide us with a clarification in this regard.

As per RFP



Sr. No.

Ref. Article



797.

DCA, Part V, Article 36, Para 36.2.1, Page 148


The Authority should include the provision of providing the Right of way to 100% land as Authority Default.

Please add clause 36.2.1 (d) as under: The authority fails to provide right of way required for development of the Airport with respect to 100% of the Site, it should be an Authority termination event.

As per RFP

798

DCA, Part V, Article 36, Paragraph 36.3.1, Page 148


Termination due to Concessionaire’s default during Operation Period, the Authority shall pay to the Concessionaire, an amount equal to: (i) 90% of the Debt Due less insurance cover; (ii) 70% of the amount representing the additional termination payment.

The provision is extremely onerous as the termination payments do not cover 100% of the debt due. This is big issue from the bankability perspective of the project.

As per RFP



Sr. No.

Ref. Article



799.



In case of termination on account of Concessionaire’s Default during the Construction Period, no termination payments shall be payable for expenditure comprising the first 40% of the Total Project Cost and only the expenditure exceeding such 40% and forming part of Debt Due will be considered. This would have an extremely adverse effect on bankability, as only 50% of the Debt Due is really being considered.

The clause must be amended to ensure that 100% of the debt due are payable as termination payments and no portion of the expenditure should be deducted from the Debt Due.

As per RFP

800



The clause provides that upon termination or expiry of the Concession Agreement, and in the event any Project Asset essential for efficient operation of the Airport is acquired after the 25th anniversary of the Appointed Date, a termination payment equal to 80% of the adjusted depreciated value of such asset shall be paid.

We would request that 100% of the Adjusted Depreciated Value of the Asset should be paid at expiry.

As per RFP



Sr. No.

Ref. Article



801.



The clause at present provides for certain limited additional termination payments to be made in relation to Phase 2 work. However, the definition of Additional Termination Payment for Phase 1 is unclear. Further, the clause provides that Additional Termination Payment shall be limited to the lowest of: (a) Adjusted Depreciated Value; (b) the capital cost of the expansion of the Airport as approved by Senior Lenders; and (c) the actual cost of the expansion of the Airport after Phase I upon completion thereof; (d) the estimated capital cost of the expansion of the Airport, as reasonably specified by the Authority, in consultation with the Independent Engineer, and prior to commencement of construction thereof. Please note that the determination of estimated capital costs for expansion of the Airport is at the discretion of the Authority. In the event the Authority determines an amount lower than the actual amounts expended, the additional termination payments shall be on the basis of such estimate. This is an extremely onerous inclusion.

In light of the same, we would request that paragraph 36.4.3(d) be deleted. Further please clarify the additional termination payments which would be paid for Phase 1 of the Project.

As per RFP

802



The clause provides that upon termination for any reason whatsoever, the Authority shall: (a) take possession and control of the Airport; (b) take possession and control of all materials, stores, implements, construction plants and equipment on or about the Site; (c) be entitled to restrain the Concessionaire and any person claiming through or under the Concessionaire from entering upon the Site or any part of the Project; (d) require the Concessionaire to comply with the Divestment Requirements set forth in Clause 35.1; and (e) succeed upon election by the Authority, without the necessity of any further action by the Concessionaire to the interests in the Concessionaire in each of the Project Agreements. However, Clause 34.6 does not specifically prescribe making of termination payments as a condition precedent to the exercise of the aforesaid rights by the Authority and therefore the Concessionaire is exposed to a fairly significant risk.

Any such rights should be exercisable by the Authority only upon making necessary Terminal Payment.

As per RFP



Sr. No.

Ref. Article



803.

DCA, Part VI, Article 39, Para 39.2 (c), Page 157


Permitted assignment and charges

Please note creation charge over the assets of the project in order to secure lending for the project should be specifically included within the scope of the permitted assignments and charges.

As per RFP

804

DCA, Part VI, Article 39, Para 39.4, Page 158


Assignment by the Authority

Any assignment by the Authority of its rights, benefits and obligations under the Concession Agreement must be with the prior consent of the Concessionaire.

As per RFP

805.

DCA, Part VI, Article 41, Page 161


Limitation of Liability

A clause limiting the extent of liability of the Concessionaire should be included in the Concession Agreement.

As per RFP



Sr. No.

Ref. Article



807.

Schedule S of DCA, Para 1.1 and 5.13.2, Page 244 and 252


The definition of ‘Reserved Matters’ specifically includes ‘entering into related party transactions’ as a reserved matter item. Further, Clause 5.13.2 specifies that the Concessionaire or its Directors shall not undertake any Reserved Matters without the prior approval of the Authority in a general meeting.

Approval of every related party transaction (for example management agreements, TSAs, consultancy arrangements, etc.) would result in operational challenges. Request the deletion of ‘entering into related party transactions’ a reserved matter item. The monitoring covenants under Clause 5.6.3 of the Concession Agreement would in any event adequately protect the interest of the Authority.

As per RFP



Sr. No.

Ref. Article



808

Schedule S of DCA, Para 1.1 and 5.13.2, Page 244 and 252


The definition of ‘Reserved Matters’ specifically includes “to commence any new lines of business”, as item (j), and ‘to make inter-corporate-loans and investments or guarantee/security to be given, etc., if the aggregate amount thereof, exceeds the limit of 10% (ten percent) of the Concessionaire’s paid-up share capita’, as item (s), as a reserved matter item. Further, Clause 5.13.2 specifies that the Concessionaire or its Directors shall not undertake any Reserved Matters without the prior approval of the Authority in a general meeting. Please see our comment on Clause 5.15 of Concession Agreement in effect restricts the Concessionaire from having any shareholding interest in any other entity for the purpose of business arrangement. The Concessionaire should be allowed to create subsidiaries / Joint Ventures for carrying out businesses at the airport, such as for duty free / fuel facility / cargo facility / ground handling / city side development etc. This is fairly typical and enables the Concessionaire to have a greater degree of operational involvement with service providers at the Airport.

Please delete item (j) and (s) from the reserved matters. In the alternate, please insert the following proviso at the end of Clause 5.13.2: “Provided that nothing contained herein shall prohibit the Concessionaire from incorporating one or more subsidiaries or investing in one or more joint ventures, providing any Aeronautical or Non-Aeronautical Services or city side development at the Airport. No approval would be required to be sought in this regard from the Authority.

As per RFP



Sr. No.

Ref. Article



809.

Schedule U of DCA, Para 2, Page 274


Confirmation of Concession Agreement

We would request insertion of the following as Clause 2.10 of the MoU: “The Government hereby confirms that it has read and approved the terms of the Concession Agreement and hereby authorizes the Grant made by the Authority under the Concession Agreement to the Concessionaire.”

As per RFP



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Ref. Article



810

Schedule U of DCA, Para 2, Page 274 Government Guarantee


We note that other PPP airport projects in the Country such as the Delhi and Mumbai airport have been supported by a guarantee from the Government of India. This being the case, and given that this would be a project of national importance, we would request issuance of a government guarantee in the same format as issued in favor of DIAL and MIAL respectively.

Please include the following as Clause 2.11 in the MoU: “The Government hereby undertakes to provide to the Concessionaire, on or prior to the Effective Date, a guarantee in the form set forth in Schedule A hereto. The Government confirms that pending the issuance of the said guarantee, the Government shall be bound by the terms of Schedule A hereof, as through executed by the Government.” A guarantee in a form similar to that offered to DIAL or MIAL could be provided.

As per RFP



Sr. No.

Ref. Article



815.

DCA, Part II, Article 3, Paragraph 3.1.1 (b), Page 38

The requirement in this paragraph is not sufficiently defined.

We suggest that the 3.1.1 (b) is alternatively defined as follows: “A certificate from Airports Council International or any other equivalent agency of similar international repute confirming that the Airport has been within the top 20 (twenty) percentile of all airports in its appropriate size category in the world for Overall Satisfaction with the Airport’ score, for a continuous period of the preceding 5 (five) years as on the date of such application; and”

Accepted. "Overall satisfaction of the airport or its equivalent"



Sr. No.

Ref. Article



816

DCA, Part II, Article 5, Paragraph 5.13 (b), Page 51 & Article 12, Paragraph 12.1.3, Page 69

Obligations related to aesthetic quality of the airport. This is very open-ended and subjective and can lead to major variations in design leading to higher CAPEX.

The aesthetics and appearance of the airport should left to the bidders and the Authority should not suggest or reject any design on that basis. Hence we suggest should delete 5.13 & modify 12.1.3 accordingly.

As per RFP



Sr. No.

Ref. Article



821.


Liquidated damages for failure to submit the Initial Master Plan within the deadlines specified in paragraph 12.2.3 are excessive.

We suggest that the level of damages for failure to submit the master plan within the specified deadlines are excessive. we suggest the following alternatives: 12.2.6: “If the Concessionaire does not submit the Initial Master Plan to the Authority as per Clause 12.2.3, then the Authority, has the right to levy liquidated damages on the Concessionaire at the rate of Rs. 1, 00,000/- (Rupees 1 Lakh) for every day of delay, provided however that, the Concessionaire’s total liability in such case shall not exceed Rs. 50, 00,000 (Rupees 50 Lakh).”

As per RFP



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Ref. Article



822


Clarification required that the periodic updates of the Master Plan allow proposed infrastructure provision to reflect changing market conditions, revised forecasts and new industry trends such that the Concessionaire can adapt the Master Plan and demand triggers as required and is not tied to an outdated plan.

We request amendment to parapgrah12.2.7 as follows: “The Concessionaire further agrees to update and resubmit the Master Plan, periodically, every 5 (five) years to the Authority for its review and comments to ensure that the Master Plan and proposed infrastructure development of the Airport reflect changing market conditions, revised forecasts and new industry trends.”

As per RFP



Sr. No.

Ref. Article



823.

DCA, Part III, Article 12, Paragraph 12.5.1 Page 72

The required timeframe for the completion of Phase 1 (1,095 days/3 years) is insufficient. TRIL proposes a more realistic 4 years for the Phase 1 completion.

TRIL proposes a more realistic 4 year (from the Appointed Date) Programme of work for Phase 1. And hence requests amendment of paragraph 12.5.1 as follows: “The Concessionaire shall undertake ….. Set forth in Schedule A. The 1,460th (one thousand, four hundred and sixtieth) day from the Appointed Date shall ….”

As per RFP



Sr. No.

Ref. Article



825.


The Concessionaire is required to acknowledge and agree that the total costs towards the Pre-development Works is fixed in ‘Clause 0’. It is not clear on what basis or information the Concessionaire can acknowledge and agree this amount. TRIL believes that the cost of Pre-Development works should be actual and not estimated. BIACL should take the responsibility of Pre-development works, not the Concessionaire.

BIACL should specify which is ‘Clause 0’. TRIL’s position is that Pre-Development works is should be responsibility of BIACL. We request deletion of 12.9.2

As per RFP

826


Clause implies that the Concessionaire will develop MRO facilities, although it is recognized that other related clauses provide the opportunity for the Concessionaire to “cause to” develop. Clause to be made consistent with other related clauses.

12.10.1: “Subject to the provisions of this Clause 12.10 and Clause 18.13, the Concessionaire shall undertake, or cause to undertake, the development of the MRO facilities …..”

Accepted



Sr. No.

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828


Modifications/improvements to the airport cannot adversely impact the operations of the existing and operational parts of the Airport and/or Users.

Modifications are likely to cause some impact; it’s inevitable. The impacts need to be controlled to ensure that they are not significant. We therefore suggest amendment of Paragraph 17.8.2 as follows: “At no time, such modifications shall cause significant adverse impact to the operations of the existing and operational parts of the Airport and/or the Users.

As per RFP



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Ref. Article



829.

DCA, Part III, Article 17, Paragraph 17.11.3 (a), Page 90 DCA, Part III, Article 17, Paragraph 17.6.3, Page 88

In the event of a national emergency the Airport to be handed over to the GOI. This is to be expected, however, there does not appear to be any recognition in the DCA that the fixed annual concession fee would not apply. This may be covered by the Concessionaire’s insurance.

We request BIACL to clarify if the payment of the fixed annual concession fee is to be adjusted if the airport is taken over by the GOI during national emergencies.

As per RFP



Sr. No.

Ref. Article



830

DCA, Part III, Article 17, Paragraph 17.11.3 (b), Page 90

The Concessionaire has to provide free uninterrupted landing and parking facilities for Defence and other paramilitary aircraft, and also to provide the infrastructure facilities and equipment required for Defence operations. The infrastructure and equipment to be provided by the Concessionaire for Defence operations is not defined.

We suggest that 'uninterrupted landings' are allowed only outside of peak operational hours and we request BIACL to define somewhere in the Concession Agreement the facilities and equipment required for Defence operations. Therefore we suggest that paragraph 17.11.3 (b) is amended as follows: “provide uninterrupted landing and parking facilities for Defence and other paramilitary aircrafts outside of the peak operational hours, free of landing and parking charges, and also provide the facilities and equipment required for Defence operations.” BIACL to define the infrastructure and equipment to be provided by the Concessionaire for Defence operations.

As per RFP



Sr. No.

Ref. Article



832


The Concessionaire is required to operate and maintain cargo facilities and provide associated services to airlines and consignors.

Standard practice is for airlines/handling agents to develop and operate cargo facilities on areas of land leased to them. Therefore we request BIACL to amend paragraph 18.4.3 as follows: “The Concessionaire is required to operate and maintain, or cause to operate and maintain, the Cargo facilities and provide the associated facilities and services to airlines and consignors in accordance with the provisions of this Agreement, Applicable Laws and Good Industry Practice.”

Accepted



Sr. No.

Ref. Article



833.


The Concessionaire is required to ensure that IATA Level of Service (LoS) C is maintained at peak hours and if IATA LoS C is not maintained financial penalties will apply. The key point here is that IATA LoS C (in ADRM10 now defined at ‘Optimum’ Level of Service) is a complex combination of space standards (m2/pax) and waiting time standards (minutes) measured across the departure hall, check-in, security, emigration, boarding gates, immigration, baggage reclaim, arrivals hall and CIP lounges. There are in excess of 30 measures. ADRM has been developed primarily as a tool to help plan airport terminals using passenger forecasts combined with a complex set of calculations. ADRM was not developed as a service quality monitoring tool. At face value the Concessionaire could face a claim for damages if any one of these measures is exceeded. Elsewhere in the DCA (Schedule I, Annex I) a service quality regime is defined with a series of measures with financial penalties applying for poor performance. The IATA LoS C measures and penalties are difficult to measure and to some degree are duplicated by the Schedule I, Annex I service quality measures. The IATA LoS C measures and penalties do not need to apply and should be deleted form the DCA.

We believe that measurement of IATA LoS C should not form part of the Service Quality Requirements. We believe that the Service Quality Requirements defined in Schedule I should be redefined to include a combination of ACI ASQ measures and other agreed specific measures for the airport. This is explained in more detail below against our comments for Annex I. As a result we request BIACL to delete paragraph 18.6.9 from the Concession Agreement.

As per RFP



Sr. No.

Ref. Article



836


A reserved area within the terminal building is required for the Authority.

We believe that the space within the passenger terminal should be reserved for core operational functions only. Therefore we request BIACL to amend Paragraph 19.7.1 as follows: “Subject to the provisions of Clause 18.8, the Concessionaire undertakes that it shall, at all times during the Concession Period, provide to the Authority or its nominees, such Reserved Area, access and facilities at the Airport as may be necessary to enable them to perform the Reserved Services in accordance with the provisions of this Agreement. Without prejudice to the above, the Concessionaire shall separately earmark and provide a minimum of 1,500 sq. ft. of the constructed area/office space in the Terminal Building for the Authority at an office building adjacent to or nearby the Terminal Building.”

Accepted.



Sr. No.

Ref. Article



837.

DCA, Part III, Article 20, Paragraph 20.3 (a), (c) and (d), Page 106

The Concessionaire is required to regularly monitor traffic flows for the purpose of determining IATA LoS, (see item 19. above).

The Service Quality Requirements defined in Annex I should be redefined. We therefore request BIACL to delete paragraph 20.3 (a), (c) and (d).

As per RFP



Sr. No.

Ref. Article



838


Concessionaire to partake in the ACI ASQ survey (or similar) and ensure a score of at least 4.5 is achieved and that the airport appears in the top 20 percentile of all airports in its category in the world within 5 years from COD and maintain this throughout the concession period. Further, the minimum rating required in other Airports such as Delhi and Mumbai is only 3.5.

We believe that the ASQ 4.5 target is too stringent and we assume that this requirement refers to an overall satisfaction ASQ score and ‘category’ refers to ASQ size categories (2-5mppa), 5-15mppa, 15-25mppa, 25-40mppa and >40mppa). As such we request BIACL to amend Paragraph 22.7.1 as follows: “The Concessionaire shall participate in the User Survey of ASQ undertaken by Airports Council International (“ACI”) or any substitute thereof, conducted every quarter and shall ensure that the Airport achieves and maintains a rating of at least 3.5 (three point five) out of 5.0 (five) for Overall Satisfaction with the Airport and/or shall appear within the top 20 (twenty) percentile of all airports, in its appropriate size category in the world in such survey within 5 (five) years from the Phase I COD and maintain the same throughout the rest of the Concession Period.”

As per RFP



Sr. No.

Ref. Article



844

DCA, Schedule B, Page 178

Development of the Airport.

BIACL should provide a detail plan phasing the development of the airport clearly stating the design standards and the amenities should be provided.

As per RFP

847.

DCA, Schedule G, Paragraph 3.1, Page 190

Phase I Scheduled Completion Date is defined as the 1,095th day from the Appointed Date.

TRIL proposes a 4 year Programme of work for Phase 1 and hence requests amendment of Schedule G, paragraph 3.1 as follows: “The Scheduled Completion Date of Phase I shall occur between the 1,460th (one thousand, four hundred and sixtieth) days from the Appointed Date.”

As per RFP



Sr. No.

Ref. Article



848

DCA, Schedule I, Annex I, Item 1, Page 194 - 196

Schedule I, Annex I sets out the proposed service quality regime measures. The service quality regime imposed on the Concessionaire should be constructed using the following general principles: (a) It should cover only major aspects of customer service which are of significance to airport users (airlines and passengers); (b) It should be objective and measurable; (c) Exclusions i.e. outages for specific reasons outside of the control of the airport operator need to be excluded from equipment availability measures; (d) It should cover aspects which are under the direct control of the Concessionaire; (e) For equipment availability measures, there should be agreed ‘deadband’ periods each year excluded from the availability measures when annual planned and routine maintenance can take place; and (f) The Concessionaire’s annual maximum exposure to rebates/penalties should be determined. Some airport operators in India (and elsewhere in the world) that are subject to asymmetrical service quality regimes have proposed symmetrical regimes whereby there are penalties for poor performance and rewards for good performance. There has been some limited success with this approach in the UK but AERA has rejected this approach in the past. At LHR the monthly service quality regime placed on the airport operator excludes any measures related to immigration and check-in as the regulator recognizes that these are not in the direct control of the airport operator. The LHR regime does include security queuing measures the security function is undertaken by the airport operator, not by a UK Government agency. A summary of the measures included in the LHR Service Quality Rebate and Bonus Scheme is provide at Appendix B. The current LHR service quality regime is the product of many years of experience and direct discussions between the airport operator and airlines through ‘constructive engagement’. It represent a mature service quality regime from which other airport operators and regulators can learn. The BIACL proposed mechanisms for monitoring and recording queuing times in the proposed Service Quality Requirements are not fully defined and are open to interpretation.

See specific suggestions against each Schedule I, Annex I items below. As there are a number of proposed changes to the Service Quality Requirements we suggest a specific meeting with BIACL to discuss these parameters.

As per RFP

850

DCA, Schedule I, Annex I, Item 1, Page 194

Terminal Services - Automated Services to be available 98% of the time. Could BIACL please clarify the definition of ‘Automated Services’?

As per RFP



Sr. No.

Ref. Article



851.


Terminal Services – Repair Completion Time measure to be 95% of high priority complaints within 4 hours and 95% of others within 24 hours. Who defines a priority complaint?

Repair completion time duplicates the Terminal Services availability measures for Flight Information, Lifts, escalators and travellators which take into account downtime of assets. We request BIACL to remove ‘Terminal Services – Repair Completion Time’ from the Schedule I, Annex I Service Quality Requirements.

As per RFP



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852


Terminal Services – Cleanliness measure to ensure a satisfactory cleanliness rating of 95% for all inspections.

The measurement mechanism and how/who will measure cleanliness is not defined. The ACI ASQ survey includes a ‘Cleanliness of Airport Terminal’ measure; this could be a suitable replacement for BIACL’s proposed measure. We suggest that BIACL deletes the Terminal Services - Cleanliness measure and replaces it with the ACI ASQ measure for ‘Cleanliness of Airport Terminal’. Further, as general point we request that the requirement of compliance with quality of services should not come from different references. We propose inclusion of ACI ASQ measures for service quality survey guidelines.

As per RFP



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853.


Terminal Services – Facilities for Disabled Passenger to be available for 100% of the time.

The measure is not defined. Which particular facilities for disabled passengers that would be included in this measure are not defined? The measurement mechanism is not defined either. Could BIACL please clarify the definition of ‘Facilities for Disabled Passenger’?

As per RFP



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854


Check-in maximum queuing times are defined.

Check-in queues are not in the direct control of the Concessionaire. The Concessionaire can provide the required number of desks to maintain queues to reasonable levels, however, if the airlines/handling agents do not provide the required manpower to open the desks then the Concessionaire should not be held responsible and penalized for the airline/handling agents’ failure. We suggest that BIACL removes ‘Check-in’ from the Schedule I, Annex I Service Quality Requirements. Alternatively substitute this proposed measure with the ACI ASQ “Waiting time at check-in queue/line” measure but do not impose financial penalties for this measure.

As per RFP



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855.


The proposed Service Quality Requirements sets out maximum queuing times for security processing (95% of peak hour passengers wait less than 5 minutes).

Based on current practices in India the security operation is not performed by the Concessionaire (unless new laws/arrangements are put in place by the GOI) and therefore the Concessionaire is not in direct control of this process or how it is resourced. Also, the proposed performance standard is very onerous and exceeds the equivalent standards at some other major international airports. There are two main issues; (a) the period of time that performance is measured over, and (b) the actual measure. At LHR there are two standards: (a) 95% of passengers wait less than 5 minutes; and (b) 99% of passengers wait less than 10 minutes. However, performance is measured over the day (0500-2230) and not just at peak times. We request BIACL to remove ‘Security’ from the Schedule I, Annex I Service Quality Requirements. Alternatively substitute this proposed measure with the ACI ASQ “Waiting time at security inspection” measure but do not impose financial penalties.

As per RFP



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856


The proposed Service Quality Requirements sets out maximum queuing times for Immigration processing (95% of passengers wait less than 10 minutes).

The immigration operation is not performed by the Concessionaire and therefore the Concessionaire is not in direct control of this process or how it is resourced. Also, the proposed standard is quite onerous. By comparison at HKG the equivalent service standard is 92% of passengers wait less than 15 minutes. We request BIACL to remove ‘Immigration’ from the Schedule I, Annex I Service Quality Requirements. Alternatively substitute the proposed measure with the ACI ASQ “Waiting time at passport/personal ID inspection” measure but do not impose financial penalties.

As per RFP



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857.


The proposed Service Quality Requirements sets out target first and last bag times separately for domestic and international flights.

The proposed Baggage delivery measurement system is not defined and whilst the target times are defined the proportion of flights that need to meet these target times is not defined. Baggage is delivered by handling agents and so first and last bag times are not controlled by the airport operator. Therefore, we believe that this measure should be excluded from the proposed Service Quality Requirements. The first bag time is notoriously abused by handling agents who have been known, at some airports, to ‘rush’ the first bag to the belt to achieve the first bag time leaving the remainder to follow in due course. If the first bag measure is retained it should be combined with a % of bags within the first bag target time. We request BIACL to remove ‘Baggage delivery’ from the Schedule I, Annex I Service Quality Requirements. This would be replaced by a measure based on availability of the baggage reclaim belts.

As per RFP



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858


The proposed Service Quality Requirements sets out target times for the passenger arrival process.

The total passenger journey is highly influenced by factors outside of the control of the Concessionaire (immigration queuing times, baggage delivery times etc.). We request BIACL to remove ‘Passenger arrival processes from the Schedule I, Annex I Service Quality Requirements. This could be replaced with the ACI ASQ measure for ’Walking Distances”. However there should be no financial penalties attached to this measure. Walking distances are a function of the design and if walking distances are perceived to be unsatisfactory there is little that the Concessionaire can do to rectify the situation on an ongoing basis. An alternative approach would be to set a planning standard of say ‘a maximum of 650m unaided walking distance’ to be used only as in input to the planning and design of the passenger terminal.

As per RFP



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859.


The proposed Service Quality Requirements sets out various measures related to passenger boarding bridges. The Performance Measure is defined as ‘% of aircraft movements served to meet airline request’ whereas the Minimum Performance Standard is ‘International – 90% of annual passengers, Domestic – 90% of annual passengers travelling on A/C B737/A320 or larger unless not required by Airlines.’

The measures are not clearly defined. We suggest that the % of annual passengers served by boarding bridges is preferable to the requirement, defined elsewhere in the Concession Agreement, for 80% of gates to be equipped with passenger boarding bridges and that there is no need to have two measures/requirements related to passenger boarding bridges. We request BIACL to clarify the definition of ‘Passenger boarding bridges’ in relation to this proposed Service Quality Requirement.

80% accepted



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860


The proposed Service Quality Requirements sets out two identical measures for ‘Availability of Flight Information’

We suggest that BIACL deletes the second occurrence of the ‘Availability of Flight Information’ at Schedule I, Annex I, Item 1, and page 193.

Accepted

875.

TEFS Report – 7.4 Cost Estimate

TEFS

We request authority to relook the scope of work for reduction to reduce phase 1 capex to make project viable considering traffic volume and growth.

Accepted

877.

TEFS Report - 0.9 WAY FORWARD

TEFS EIA Studies to be completed and clearances obtained from MoEF.

We request BIACL to initiate financial bidding after obtaining clearance from MoEF.

Not accepted. MoEF clearance would be provided by Authority.



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879.

TEFS Report - 0.9 WAY FORWARD

TEFS Mandatory clearance for commercial development from concerned agencies may be initiated.

We request BIACL to initiate Mandatory clearance for commercial development from concerned agencies and provide a single stage clearance to the concessionaire

As per RFP.

883. General

BIACL should create single window clearance for Concessionaire.

Accepted on best effort basis.

885. General

Request Authority to conduct Site Visit for all bidders to also allow bidders for additional queries pertain to the site.

Accepted on best effort basis.



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886 General Approach Road for Commercial Development

Authority should review the approach road and provide scope of further expansion considering the future development in area.

As per RFP.

889.

Clause 2.6.1 Vol I Page no. 28

Bidders are encouraged to submit their respective Bids after visiting the Project site and ascertaining for themselves the site conditions, traffic, location, surroundings, climate, availability of power, water and other utilities for construction, access to site, handling

We request that a formal site visit may be organized for the interested bidders along with technical consultants before the due date of submission of bid. Accepted on best

effort basis.



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and storage of materials, weather data, applicable laws and regulations, and any other matter considered relevant by them.

890

Clause 2.2.10 (d) Page no. 22 Vol I

In case the Bidder is a Consortium, each Member should substantially satisfy the Bid requirements to the extent specified herein.

Please consider revising the provision so that all members of the Consortium shall collectively / in aggregate meet the criteria. As per RFP.

892 Clause 1.1.1 Vol I

Terminal capacity for Ph-1 = 6.3 Mn and Ph-2=18 Mn per annum

It is suggested that the design capacity of the Terminal be decided by the Concessionaire based on independent traffic study to be conducted as per its bid preparation and at the post award stage. This will further in line with the proposed business plan to be prepared by him and also in sync with actual traffic growth after the airport commenced operations.

As per RFP.

897.

Clause 2.2.3 (a) ii Vol I

Such O&M Project shall have achieved a passenger

It is suggested that the requirement for passenger throughput be reduced to 3 Mn pax in any of the last 5 years. As per RFP



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throughput of not less than 5 (five) mppa in any one year of such Three Year Period;

898

Clause 2.2.3 (a) iii Vol I

Such Eligible Project shall have ASQ or Skytrax ranking in the first 100 (hundred) (i.e. in between 1 to 100) in the year in which the passenger throughput is not less than 5 (five) mppa. For the purposes of this RFQ, ASQ or Skytrax ranking shall mean the overall ranking of the Eligible

The requirement for ASQ or Skytrax ratings be done away with as these are done by private agencies on membership basis and there are many international/domestic airport operators both in Public and private domain have their own ratings independent systems. Additionally, the BIA is a greenfield airport it would require achieving operational stability before participating in any survey of these agencies as a paid member.

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Project (a) for the relevant year as issued by Skytrax; or quarters of the relevant year as issued by ACI, as the case may be.

899. Clause 2.4.1 Vol I

..the Bidder acknowledges that it was pre-qualified and short- listed on the basis of Technical Capacity and Financial Capacity of those of its Consortium Members who shall, until the 7th (seventh) anniversary of the date of commercial operation of the Project,

In an event, the consortium includes members (other than the Lead Member) who hold less than 26% equity does the 7 year holding period is applicable in their case? For illustration- the Lead member holds 30% and two other members hold 22 and 22 per cent each and if the Lead member continues to hold 30% will this clause be applicable for the other members who hold less than 26% from divesting their stake any time after COD? Kindly clarify

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hold equity share capital representing not less than 26% (twenty six per cent) of the subscribed and paid-up equity of the Concessionaire. The Bidder further acknowledges and agrees that the aforesaid obligation shall be the minimum.


The Bidder shall also provide 2 (two) compact discs (CDs) containing soft copies of the Technical Bid in either Microsoft Word or

It is suggested that as the Compact discs are almost out of circulation and also has size restrictions, can the copies be submitted in flash drives or uploaded to the Authority's servers if a link can be provided to all the bidders prior to the due date.

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PDF formats.

901.

Clause 3.2.3 (a) & (b) Vol I

The entity claiming experience should have taken overall responsibility for design, engineering, financing, risk management and construction of the Eligible Project. It should have been undertaken as a PPP project on DBFOT, BOT, BOLT, BOO, BOOT or other similar basis AND the entity claiming experience should

In the event if a bidder acquires a project in Public Domain from another entity through commercial transaction either before COD or post COD and further develops it by incurring expenditure, does the experience can be counted for meeting the experience? Kindly clarify.

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have held, in the company owning the Eligible Project, a minimum of 26% (twenty six per cent) equity from the date of signing of the Concession Agreement till date of commercial operations of the Eligible Project for which Eligible Experience is being claimed; and should have been designated as the lead member for such Eligible Project,


In the event that two or more Qualified Bidders

In an unlikely event, resorting to "draw of lots" looks elementary and obsolete. Authority may decide to adopt the highest of the experience score or financial net worth or number of higher capital cost of eligible projects among the tied bidders to decide the qualifier rather than draw of lots in line with the equal opportunity for all and may the best experienced entity win.

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providing the same amount of Revenue Share (the "Tie Bidders"), the Authority shall identify the Selected Bidder by draw of lots, which shall be conducted, with prior notice, in the presence of the Tie Bidders who choose to attend.

904 Clause 5.2.6 Vol II

The Concessionaire agrees and acknowledges that selection or replacement of any or all EPC Contractors or O&M Contractors and execution

It is requested that the prior approval may be made as deemed necessary only in the case of International EPC contractors who haven't established their office in India on the date of award of EPC contract by the concessionaire and not for others.

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of all EPC Contracts or O&M Contracts shall be subject to the prior approval of the Authority and the Designated GOI Agency from national security and public interest perspective.


For procurement of goods, works, services, sub-licenses or any other rights or privilege where the consideration (including deposits in any form in respect thereof) exceeds Rs.

Request to amend this to read as Rs.50, 00, 00,000 (Fifty crore only). as per RFP



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25, 00, 00,000/- (Rupees Twenty Five Crore) in any Accounting Year (collectively, the “Contracts”), the Concessionaire shall invite offers through open competitive bidding by means of e-tendering and shall select the awardees in accordance with the policy specified under Clause 5.6.1.


Phase Completion Schedule

Request Authority to be amended as "The Concessionaire shall construct the Airport in accordance with the Approved Business Plan as submitted by the Concessionaire and the Phase Completion Schedule set forth in Schedule G shall be stand modified as per the Approved Business Plan submitted.

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910

Clause 18.8 & 19.7.1 Vol II

Reserved areas

It is requested to indicate clearly the maximum area to be earmarked for each of the agencies to avoid conflicts and clash of commercial revenue generation interests as part of the Concession. As per RFP

913. Clause 33.9.2

If Termination is on account of an Indirect Political Event, the Authority shall make a Termination Payment to the Concessionaire in an amount equal to: (a) Debt Due less Insurance Cover, provided that if any insurance claims forming part of the Insurance Cover are not admitted and paid,

Request Authority to amend the clause as - If Termination is on account of an Indirect Political Event, the Authority shall make a Termination Payment to the Concessionaire in an amount equal to: (a) ........ (b) 150% (one hundred and fifty percent) of the Adjusted Equity;

As per RFP



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then 80% (eighty percent) of such unpaid claims shall be included in the computation of the Debt Due; and (b) 110% (one hundred and ten percent) of the Adjusted Equity;

919.

Restrictions on air space

Restrictions on unhindered use of air space over BIA for continuous operations and traffic growth

Kindly share the copy of the air space usage for BIA from the Defence authorities in view of the existing airport being Defence owned. As per RFP



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920

Recital ‘F’ of the Draft Concession Agreement

SPV – ‘Private Limited Company’

Is there any specific requirement it should be a ‘Private’ company only? As per RFP

922 Clause 3.2 of DCA

Right to sub-license The right may be broadened to right lease, license, rent etc. As per RFP

924 Clause 9.1 Performanc

e Security The amount of performance security is very high and may please be reduced to not more than 54.0 Crores. As per RFP As per RFP

925. Clause 9.4

Deemed Performance Security

Please clarify whether equivalent amount should be kept reserved in the Escrow Amount towards Deemed Security? If so, it would be an additional financial burden on the project, which is not desirable. As per RFP As per RFP

926 Clause 12.5.2.

Construction Milestones

It should be as per the approved business plan to be decided later. As per RFP

927. Article 14 Completion

of Phase

When 90% of the project facilities are completed and project is ready for safe & reliable operations, then ‘provisional completion’ may be issued for commercial operations. For completion of punch list items, 150 days additional time may be given beyond 1095 days.

As per RFP

929. Article 27

Revenue Sharing Mechanism

Given the existing relatively low traffic volumes at Visakhapatnam airport, very low socio-economic development of Vizianagaram and Skikakulam districts and high capital investment involved in the project, in the initial years of operation during the debt payback period, BIACL should provide ‘VGF’ in form of bi-annual ‘Revenue Grant’ to concessionaire and later seek for ‘Revenue Share’. This will help project to become financially viable, sustainable and bankable.

As per RFP

930 Article 39 Substitutio

n

In case of unlikely event of substitution, the airport O&M entity (not being the lead member) may be allowed to continue as part of the new dispensation (prospective concessionaire), as this would give comfort to foreign airport operators.

As per RFP



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932 General Pre-bid

Conference Another round of pre-bid conference may please be held after providing clarifications in the first instance.

Accepted. Pre-bid conference no. 2 is scheduled on 07 Oct 2016

937. General

Land for city site development.

Entire land in excess of operational area requirement should be allowed to be used for non-aeronautical purposes/city side development without any restrictions. As per RFP

938 General

Differential Concession Period

The land meant/proposed for non-aeronautical purposes/city side development purposes should have more concession period As per RFP
